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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London Borough of Greenwich, R (on the application of) v Secretary of State for Health & Anor [2006] EWHC 2576 (Admin) (13 July 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2576.html
Cite as: [2006] EWHC 2576 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF THE LONDON BOROUGH OF GREENWICH | (CLAIMANT) | |
| -v- | ||
| SECRETARY OF STATE FOR HEALTH | (DEFENDANT) | |
| and | ||
| THE LONDON BOROUGH OF BEXLEY | (INTERESTED PARTY) |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS F MORRIS (instructed by the London Borough of Greenwich) appeared on behalf of the CLAIMANT
MR T BULEY [MR G LEWIS] (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
MR K RUTLEDGE appeared on behalf of the INTERESTED PARTY
____________________
Crown Copyright ©
- MR JUSTICE CHARLES: I have before me an application for judicial review issued by Greenwich Council against the Secretary of State for Health relating to a decision or decisions of the Secretary of State made under the National Assistance Act 1948. The decision initially under attack was one made pursuant to a reference under the relevant section. The second decision asserted to be under attack, and added by way of amendment, which was granted by way of consent at the beginning of the hearing, is essentially a refusal to reconsider that earlier decision. I say immediately that counsel for the Secretary of State explained that his understanding of the amendment was that it was not to include an attack on the refusal to review decision. It seems to me that the language of the agreed amendment did include that attack. However, it also seems to me that nothing really turns on the point as I will explain later.
- Before turning to the statutory provisions I propose very briefly to deal with some of the background facts. The underlying dispute in reality is as to which of Greenwich and Bexley should be funding the residential placement of a Mrs D pursuant to the National Assistance Act 1948.
- Mrs D is a lady who lived her life in Bexley. She owned a home there. After she moved to a residential care home in Bexley, which she did in May of 2001, her home was sold in June of 2001; the reason for that sale being that under the provisions of the relevant legislation she and her family were responsible for the costs of the residential care home in which she was living.
- After a time, as a result of Mrs D's behaviour at the residential care home in Bexley where she was placed, complaints were made and the issue that arose was whether or not she could remain at that residential care home. Bexley became involved in that process and indeed, as I understand it, had been involved earlier in respect of the placement of Mrs D and had assisted the family. The undisputed evidence is that the conclusion was reached that it was no longer appropriate for Mrs D to remain at that residential care home and a place had to be found for her elsewhere.
- Two placements within the borough of Bexley were considered but rejected on grounds of suitability or lack of accommodation. Another home was found which I was told is 100 metres outside the boundary of the borough of Bexley and therefore 100 metres within the boundary of Greenwich. Mrs D moved to that home. At the time she moved it was known to Bexley that she was going to pass through the capital financial limit cap, which was then the sum of £19,000, within four weeks and five days. It was therefore known that by the end of June she was no longer going to be responsible for the payment of the fees of the care home and the situation would change from one in which she and her family were responsible to one in which the payments would be made by the appropriate local authority with appropriate contributions from Mrs D under other provisions of the Act.
- At this stage I propose to cease giving a brief thumbnail sketch of the background and turn to the relevant statutory provisions. I will return to the factual position later. At this stage I record that an agreed statement of facts was placed before the Secretary of State who, in the determination, also sets out a series of factual findings.
- So far as the relevant statutory provisions are concerned I start with what was, in my view, correctly described as the overarching provisions contained in the National Health Service and Community Care Health of 1990. Section 46(1)(a) is as follows:
- I pause to note that the provisions of that Act contain no reference to the duty arising by reference to the ordinary residence of the relevant member of the public. It was, as I understood it, common ground that it was in the exercise of the duties imposed by section 47 that Bexley had carried out and were carrying out assessments of Mrs D when she moved from the residential care home in Bexley. In this context I was also referred to section 29 of the National Assistance Act 1948.
- It is to that Act that I now turn. This is the core statute so far as the present proceedings are concerned. Section 21(1)(a) reads:
- Section 21(2A) is as follows:
- I pause at that point to record that the relevant regulations are the National Assistance Assessment of Resources Regulations 1992. The updated version of those Regulations provide as follows:
- I return to section 21 of the 1948 Act:
- At this stage I pause to deal with a point that arose as to circumstances in which the relevant local authority have a power and circumstances as to which they have a duty. To that one returns to section 21(1), which indicates that the relevant authority has a power, but, to such extent as the Secretary of State may direct, that power is essentially converted into a duty. The wording of section 24 refers in its statutory form to "powers". The relevant direction given by the Secretary of State directs local authorities to make arrangements under section 21(1)(a) of the 1948 Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof.
- The point that was made, having regard to the combination of the primary statutory provisions and that direction, is that in respect of persons ordinarily resident in their area local authorities owe a duty. However, they only have a power in respect of persons who are not ordinarily resident in their area. That can occur in circumstances when the person is ordinarily resident in the area of another local authority, or it could occur in circumstances when the person is not ordinarily resident in any authority. When the person is ordinarily resident in another authority, then the power is exercisable with the consent of the authority that owes the duty, that is the authority where the person is ordinarily resides. Where there is no settled residence there is a power, save that that power is converted into a duty in circumstances of urgency.
- I accept the submission made on behalf of Greenwich that a message derived from the statutory provisions (which expressly envisage the Secretary of State making directions against the backdrop of the subject matter of provisions which are the last safety net) that the preservation of a duty is a relevant feature. Thus it seems to me that that is a factor to be taken into account in considering whether or not a person has ceased to become ordinarily resident in a local authority which owed him a duty. It is, however, naturally, no more than a factor. Converting that point to this case, the factor is, one favouring a conclusion, that an individual would not lose ordinary residence in local authority X before acquiring ordinary residence in local authority Y. Here X is Bexley and Y is Greenwich.
- I now return to the statutory provisions. Sections 26(1), (2) and (3) provide as follows:
- As I have mentioned, I was referred to section 29, but I do not think that I need set that out.
- Finally I quote section 32(3):
- What, therefore, was the role of the Secretary of State? It was, as the section provides, to determine the question arising under the Act as to ordinary residence of Mrs D? In the context of this case it was common ground, and correctly common ground, that that raised two essential issues. Firstly, did the deeming provision in section 24(5) apply? If it did not, secondly where was Mrs D ordinarily resident at the relevant date?
- What is the role of the court? It is clear from the statute that on the issue of ordinary residence, which determines the question of whether Bexley or Greenwich is the authority now responsible for funding the residential home, the Minister is the designated statutory decision maker. It seems to me -- and I mentioned this to counsel and I was not told that I was wrong -- that the passage from the speech of Lord Mustill in R v Monopolies and Mergers Commission ex parte SYT [1993] 1 WLR 23 at page 32G-H applies. In that context, and applying that passage, I, therefore, have to consider whether the Secretary of State as the decision maker applied the right criteria. If the Secretary of State applied the right criteria in the context, in particular, of the assertion as to where Mrs D was ordinarily resident, the range of decision open to a decision maker properly directing himself or herself comes into play. There is less of a range of decision available as to the application of the deeming provision.
- In considering whether or not the Secretary of State applied the right criteria naturally I have to turn to and consider the reasons given by the Secretary of State for the decision reached. In doing that, again, in considering whether the criteria have been correctly applied, I have to consider whether or not the Secretary of State has had regard to the relevant factors and disregarded irrelevant factors. It was common ground that unless I am in a position to say that the Secretary of State applying the right criteria would effectively inevitably reach one decision or the other, then the course for me to take would be to remit if I felt that the Secretary of State had not applied the right criteria, or that the reasons given by the Secretary of State fell short of the standard required to demonstrate that that was the case.
- I should also at this stage refer to some of the guidance to which I was taken -- that is the statutory guidance issued to local authorities -- as to which I was also referred to the decision in R v Islington London Borough Council ex parte Rixson [1996] as to its effect. I was particularly taken to paragraph 2 of the headnote.
- I have already referred to the specific guidance relating to directions given to local authorities by reference to when they have a duty and when they have a power. I turn now to Local Authority Circular LAC (93) 7. The opening paragraphs to that circular indicate that it contains guidance on the identification of the ordinary residence of people who require personal social services under the National Assistance Act. The second paragraph reads as follows:
- That passage was drawn to my attention, in particular on behalf of the Secretary of State to indicate -- and in my judgment it does indicate -- that, notwithstanding the dispute between Bexley and Greenwich as to which of them was responsible for meeting the relevant cost, Mrs D and her family should not have been affected by that financial dispute.
- Allegations have been made by Greenwich concerning the approach taken by Bexley. I should pause at this stage to record that the material before me indicates that Greenwich possibly -- and I stress possibly, because I have not investigated it -- delayed possible moves of Mrs D having regard to financial matters. It is now the common position, as I understand it, that Mrs D, due to deterioration in her health and general condition, is appropriately placed.
- I was also taken to a number of other paragraphs within this Guidance, importantly paragraph 2. That reads:
- Paragraph 7, which it was accepted applied when the section 21 obligation was in place, reads:
- I quote paragraph 10, which, it was common ground, applied when the section 21 obligation had not arisen:
- Finally, in this connection, paragraphs 12, 13, 14 and 16, and paragraph 17, provide:
- I was also referred to some general guidances as to the position relating to the review of care needs, but I do not think I need set that out.
- Returning now to the factual background. As I indicated, an agreed statement of facts was put to the Secretary of State. There was some complaint that Bexley had not disclosed the entirety of their files, but it seems to me that that does not lead to any relevant point in the case. The Secretary of State in the determination sets out and finds facts as follows:
- Against that backdrop I should refer to some of the documents that were also referred to therein. The relevant dates are that the date of the move was 27th May 2002. The money ran out, in the sense that Mrs D's available capital fell below £19,000, at the end of June. The date I was given was 29th June 2002. So at the date of the move it was known that as at 29th June, pursuant to the statutory provisions, the appropriate local authority would be responsible for funding the costs of the residential care home, subject to contributions being made by Mrs D.
- By a letter dated 27th May 2002 (the date of the move) Bexley wrote to a son of Mrs D in the following terms:
- That letter bears many of the hallmarks of a standard form letter. It does not fit with what was actually happening on the ground very easily, or with the conclusions reached by the Secretary of State based on the agreed statement of facts. Those conclusions show that it was in reality Bexley who arranged the move to the new residential home. What would also seem to follow from that letter would be that Bexley would inform, in this case, Greenwich if and when Mrs D and her family chose a home in Greenwich in the context not only of their assertion that it would then be Greenwich who would become responsible, but also in the context of ensuring a continuum in respect of a local authority's involvement in ensuring that the needs of Mrs D were met.
- The medical and social work records produced by Bexley, having recorded by reference to an entry dated 29th May that Mrs D went to the new home on 27th May, contains entries dated 10th June 2002. They include points that a query had been raised as to whether the move was to be a permanent placement and a response from somebody called Paul O'Connor, the team leader, that it was thought that this was only an assessment/respite stay for Mrs D. A telephone call with a Mr Dibble is then noted and he advised that the placement would be a permanent placement "if the family and Mrs D are happy for Mrs D to remain there". Then the notes contain a reference: "review to be arranged". That, it seems to me, is an obvious step for the social worker at that time and it indicates that there would be a need for a review to find out, for example, if the family and Mrs D were happy with the home and to find out what the position was with the home. That would have been a continuation of the helpful and proper work that Bexley had carried out thus far in identifying the home and in facilitating and bringing about the move.
- The next social work record is one dated 14th January 2003, demonstrating that, for reasons that have not been fully explained to me, but in my view, having regard to the material before me, arise essentially from oversight, nothing happened so far as Bexley was concerned relating to Mrs D and her family between June and January. There had, however, been an assessment by Greenwich in October 2002, repeated in early 2003. Up until around October 2002 it is common ground that Greenwich had no knowledge that Mrs D had been placed in a home in their area. My understanding was that they became involved because, unsurprisingly, the home in which Mrs D had been placed was seeking payment and Bexley was saying that Greenwich was the responsible local authority.
- By a letter dated 12th May 2003, and therefore some time after the event, the residential home where Mrs D had been placed and remained wrote to the financial director at Bexley, saying this:
- I pause to comment that my understanding is that Mrs D herself or through her son had in fact paid the fees due from 27th May 2002 to 29th June 2002 and that therefore there may be an error as to the period of charges in that letter.
- Later, on 14th January 2004, the residential care home wrote to the accounts department at Greenwich saying this:
- I should refer to one other letter, which is a letter written by Bexley to Greenwich, dated 30th October 2003, which contains the following assertions:
- The assessments made by Greenwich (the first in October 2002) contain a record that Mrs D's son informed the social worker that his mother was moved all of a sudden after the Panel decision in Bexley. Although the family were concerned and involved in the decision, they were given no choice but told that a place was available at the nursing home and were asked to transfer his mother. They did not know that the new nursing home was in Greenwich. There is also a note that the family wants to move Mrs D, but the social worker says that she cannot proceed with the Panel because it is not clear if Greenwich would be responsible for the funding. That is the passage I have referred to already.
- Against that background I turn to consider the questions that have arisen in this judicial review. Before doing so, as I indicated during the course of the hearing, it seems to me, that the agreed statement of facts submitted to the Secretary of State and the Secretary of State's conclusions indicate, that the position relating to Mrs D's placement over the period from 27th May to 29th June was in a state of some flux. There is a lack of clarity on the evidence as to whether it was an emergency placement, a transitional placement, or one which, with the agreement of the family and the home, would be turned into a permanent placement as has in fact happened.
- On that basis I have some sympathy with Greenwich in the stance that they have taken in complaining about the lack of information that was given to them by Bexley at and about the time of the move. I confess that I have more sympathy with Mrs D and her family. The position was that after 27th May the family were left in a difficult position, in that they were no longer being contacted on a regular basis by Bexley and nobody had informed Greenwich what was happening. Therefore they did not have the benefit of continuing welfare review, by a local authority.
- Bexley accept now, very properly, that they should have contacted Greenwich both by reference to the guidance given to local authorities, reference to sensible practice and reference, I would say to humanity. However, as I have recorded, it seems to me on the evidence that the lack of contact with Greenwich and the discontinuance of contact with Mrs D and her family is something that occurred through oversight and was not a conscious decision so far as anybody at Bexley was concerned.
- There was an allegation in the statement of grounds, which on one reading was asserting that there was a conscious decision by an officer or officers or members of a Panel at Bexley to, as it was put, "dump" Mrs D on Greenwich. I confess that it seems to me that that allegation and the issues relating to it have not been properly dealt with in the preparatory stages of these proceedings. First, if a local authority is going to make that sort of allegation against another local authority, which is one that essentially is involving a conscious act of bad faith, they must particularise it. It is put by way of inference. A fair reading of the pleading is -- and the way it was put is -- that that was what was being asserted.
- The next stage with which I would take issue is that the recipient of such an allegation should ask for some particulars of it. That was not done. What happened was that some evidence was put in seeking to refute it. That was not accompanied by any request for Greenwich to withdraw it. In my view it should have been accompanied by such a request. These sorts of allegation are easily made and to my mind they are made too often without the appropriate particulars against organisations. They are, in truth, allegations against individuals within those organisations and they require particularisation.
- In truth, when the matter came under the scrutiny of the court, it was made clear that Greenwich were not making an allegation of conscious dumping. The focus of the complaint was one relating to failure to notify. Again, on investigation by the court, to my mind, properly given the evidence, it was confirmed that it was not a conscious failure to notify. These matters should have been sorted out at a much earlier stage of this litigation between these local authorities.
- The problem, which I accept Greenwich were put in by not knowing about Mrs D, is in fact, it seems to me, a problem that could arise in circumstances where a member of the public enters a nursing home in an area of a local authority without any prior involvement of any other local authority. It seems to me possible -- I am not saying that it would necessarily happen regularly -- that a family could place a member of their family privately in a relevant nursing home without telling the relevant local authority in whose area it is and at some stage that person's funds will fall below the relevant limit.
- The difference, so far as this case is concerned, which was urged on me on behalf of Greenwich and I accepted, is that if there had been discussions between Bexley and Greenwich they would have covered issues such as the availability of other residential homes. Just as Greenwich assert that Bexley should not have been motivated by budgetary considerations in determining which home Mrs D should occupy, the same would have applied to Greenwich, in such discussions.
- So what would have been clearer would have been the choices available homes that were suitable to Mrs D and a closer analysis of what the purpose of the placement at the home in Greenwich was at that time and what the expectations of the relevant decision makers were at that time. The relevant decision makers, if Mrs D had capacity, would have included Mrs D. Other than that they would have included her adult family and, it seems to me, Bexley and, if Greenwich had been involved, possibly Greenwich.
- The upshot of that in the context of this dispute is it seems to me that the Secretary of State and the court have been deprived of some evidential material. The upshot of it in a wider sense would be that those sorts of discussion would prevent, it seems to me, the unfortunate assertions that have been made in this case under the description "dumping" and the inference or connation that flows therefrom.
- The facts as found by the Secretary of State -- and there is no evidence to the contrary -- indicate that if those discussions had taken place between Bexley and Greenwich at that time, the upshot would have been that Bexley would have informed Greenwich that they had identified two potentially suitable homes within their area, but had decided that Mrs D could not go there either because they were not sufficiently suitable or there was not a bed, and they would also have discovered that, given the state of urgency that existed, the appropriate placement was where Mrs D was placed and where she still remains. The debate between them would then, without the benefit of the extra thought that has been given to it over the years that followed, have revolved around what the statute means and its effect as to which of them should pay.
- It also seems to me that another part of the relevant background that I need to have regard to in this context is that circumstances will arise on a fairly regular basis, given the shortage of suitable places for people who fall within section 21, whereby local authorities, particularly no doubt those in neighbouring areas, will have to be seeking to access homes for people in one area or the other. There will therefore be circumstances equivalent to those which existed here, where a transfer will take place close to the trigger date which starts local authority funding of such placement.
- I turn, therefore, to the arguments on the deeming provision. The Secretary of State and Bexley argue by reference to the decision in The Chief Adjudication Officer and another v Quinn [1994] All ER 72, and in particular the speech of Lord Slynn at page 79E through to 80A, that because no arrangements had been entered into pursuant to section 26 between Bexley and the relevant care home the trigger in section 24(5) had not been met. It is said in reliance on those passages, that Mrs D was not being provided with residential accommodation under the relevant part of the 1948 Act because that was not done.
- I am, of course, bound by Quinn. I also acknowledge and accept that it contains in those passages a helpful and accurate account of the statutory provisions. However, what was not before the House of Lords in Quinn was what the position would be if the arrangements should have been made but had not been made. It seems to me that if the position is that the arrangements should have been made -- and here it is common ground that on 29th June a local authority should have made those arrangements with the relevant care home -- that the deeming provision should be applied and interpreted on the basis that they had actually been put in place by the appropriate local authority.
- In the arguments advanced in this context on behalf of the Secretary of State it was accepted that (a) a failure to comply with that statutory duty would be the subject of judicial review, and (b) if and when the court found that a local authority had acted unlawfully in not entering into the arrangements, the effect would be that the arrangements would be put in place retrospectively, not in the sense of contract, but in the sense that the result would be that the local authority would have to make the appropriate payments from the relevant date. That, it seems to me, supports the conclusion I have reached.
- That does not however determine the issue as to whether or not the deeming provision applies. In that context it is right to remember the definition in section 21(5) which I have set out earlier. That is the definition of the reference to accommodation provided under this Part.
- Returning to the deeming provision, a point which I raised on its language, which I accept is a bad point, is whether the reference in the end of the subsection to "immediately before the residential accommodation was provided" could include residential accommodation other than residential accommodation under this Part of this Act. It seems to me that the primary meaning of the words is one whereby "residential accommodation" at the end of the subsection refers to the residential accommodation under this Part of this Act mentioned at the beginning of the subsection.
- Accordingly, one has to look at the deeming provisions and ask what is the trigger date when residential accommodation under this Part of this Act was or should have been provided in this case -- that is 29th June. Then one has to ask what is the position immediately before that? That interpretation of the subsection opens up the second issue which the Secretary of State has to determine, namely what the ordinary residence of Mrs D was on, let us say, 28th June.
- The argument advanced on behalf of Mrs D to avoid that effect of the deeming provision was to pray in aid the law on cases which have interpreted the reference to need in the section as including "imminent need". I accept the submissions made on behalf of the Secretary of State, supported by Bexley, that what those cases are doing is construing the word "need" within the section as one which includes need that is imminent, as well as need that is presently there. That makes, if I may say so, obvious sense in the context of the section.
- What Greenwich seek to argue, from the platform that the duties under the 1990 National Health Service and Community Care Act are engaged, is that the fact that it was known that imminently the financial threshold would be passed, that the provision of accommodation under the Act should be treated as commencing at a date prior to 29th June and the date when that need became imminent.
- In my judgment, the Secretary of State is correct when he says that it is not right to transpose or apply by analogy the decisions on imminent need and read section 21(1)(a) as including within "accommodation which is not otherwise available to them" "accommodation which is imminently not going to be otherwise available to them" is correct. The logic and reasoning for construing need as including "imminent need" does not apply.
- Looked at more generally, the approach taken by Greenwich would introduce a further question as to when the test they propound applied, namely when was it imminent. I accept that that is an issue of fact and degree and it can be said that that is capable of resolution. But that, it seems to me, is not a very satisfactory conclusion looking at this Act purposively when one can identify by reference to the financial criteria a certain and clear line, which defines when a local authority should start to pay.
- I therefore conclude, returning to section 24(5), that the deeming provision applies, but only in line with its primary purpose to identify which local authority should continue to be responsible for providing and funding accommodation. But it does not answer the essential question in this case, because there is no dispute that as at 27th May Mrs D was ordinarily resident in Bexley, and the dispute is where she was ordinarily resident when the duty to provide accommodation arose on 28th/29th June. It is that to which I now turn.
- The first point to be made in respect of the concept of ordinarily residence is that it has been established in a number of cases that it is an issue of fact. The guidance given from cases is that the words used -- and this applies whether the word before residence is ordinary, normal or habitual -- are ordinary English words and the decision maker can determine by applying their ordinary meaning to the facts of a given case what the answer is.
- As, for example, is recorded in paragraph 18 of the judgment in Mohamed v London Borough of Hammersmith and Fulham [2002] 1AC 1487, the ordinary English words and their application may take meaning from their context. This has also been said in other cases in respect of other jurisdictions, for example, in Al Habtoor v Fotheringham [2001] 1 FLR 951. Also in the family cases the courts have had regard to the underlying purpose of the relevant statutory provision. It seems to me that that theme also runs through the cases to which I have been referred. For example, context will also be relevant, it seems to me, as part of the factual matrix and there may be distinctions in approach when the decision where somebody is ordinarily resident has to be between countries, between local authorities, between towns or between streets. The cases also deal with issues concerning the loss of ordinary or habitual residence in one place and its acquisition in another. The cases also contain decisions that a person can be habitually or ordinarily resident in two places.
- A common theme of a number of the authorities dealing with different areas of the law where the issue of ordinarily residence arises is that they refer to and apply the decision in Shah contained in Akbarali v Brent London Borough Council [1983] 2AC 309, and in particular the passages in the speech of Lord Scarman at pages 341 between letters C going through to 342 at letter E, where he says:
- And then at page 343H through to 344F, where he says:
- Other cases have also been cited to me. They include Mohamed v Hammersmith London Borough Council [2002] 1 AC 547. In particular, I was taken to paragraph 18 of the speech of Lord Slynn, where he says:
- I was also taken to Fox v Stirk [1970] 2QB 463. That was a case concerning residence for voting purposes. In particular I was taken to the headnote, the judgment of Lord Denning at page 475 between C and F, 476 at B and then the judgment of Lord Widgery at 477 from C to H. I do not think those passages need be set out in this judgment.
- I was also referred to R v London Borough of Waltham Forest ex parte Vale, a decision of Taylor J, as he then was, given in 1985. I do not think I need to refer to any of the other authorities.
- From those authorities and others, as I set out in a decision of my own in the case of MT v T, it was common ground that the following items are relevant, and this was common ground before me in this case. Habitual or ordinary residence is in each case a question of fact. The temptation to turn it into an abstract proposition should be resisted. Habitual or ordinary residence is not equivalent to physical presence. There can be ordinary or habitual residence without continuous presence, while physical presence is not necessarily equivalent to residence. Residence means living somewhere. The significance of ordinary or habitually is that it connotes residence adopted voluntarily and for settled purposes -- that was a point emphasised before me and appears clearly from Shah. Although ordinary residence in one place can be lost immediately acquisition of a new ordinary residence requires an appreciable period of time. The length of the appreciable period of time is not fixed since it depends on the nature and quality of the connection with the new place. However, it may only be a few weeks, perhaps, in some circumstances, even days. In order to establish ordinary residence over a period of time a person must spend more than a token part of that period in the place in question. Ordinary residence is not broken by temporary or occasional absences of long or short duration. It is possible to be ordinarily resident in more than one place at the same time.
- That is, in many ways, a long winded way of saying what is encapsulated in paragraph 2 of the relevant guidance to which I have referred, namely that the concept of ordinary residence involves questions of fact and degree and factors such as time, intention and continuity, each of which may be given different weight according to the context.
- It was accepted, in my judgment rightly, before me on behalf of the Secretary of State that the fact that a person, here Mrs D, does not have a place of residence, or an existing right to reside at a place in Bexley, and did not have that right on 28/29th June, is not determinative of the issue. However, it is pointed out, and I agree -- and it was, as I understood it, not disputed -- that it is a significant factor to be taken into account.
- At the heart of the challenge made to the Secretary of State's decision making process is the assertion that the Secretary of State applied the wrong criteria by effectively focusing only upon the point that Mrs D was accommodated in Greenwich at the relevant nursing home and had no place to which she could immediately go as of right in Bexley because she had sold her property in Bexley and the home she had lived at in Bexley was no longer available to her. Factually that is correct. It is also clearly an important factor in the determination of where Mrs D was ordinarily resident on 28th/29th June.
- The acceptance by counsel on behalf of the Secretary of State that it is not necessarily the determinative factor carries with it an acceptance flowing from the guidance and the cases that there are other factors to be brought into account and a balance has to be struck. At the heart of the judicial review challenge is the assertion that on a proper reading of the determination given by the Secretary of State and its explanation or clarification in later correspondence, and in particular the letter refusing to review the decision, the Secretary of State fell into error by failing to have regard to the factor or point or possibility that Mrs D could have remained ordinarily resident in Bexley on the basis, for example, that the placement in Greenwich was an emergency placement, and the focus of intention at the time was that a new home would or may be found in short order and that new home would, or probably would, be in Bexley.
- The determination of the Secretary of State has to be read generously. The question, therefore, is, reading the determination generously and the explanations and argument advanced in respect of it in later correspondence, is it fair to say (a) that the Secretary of State has applied the correct criteria, and (b) that the reasons given should be interpreted as being the reasons that the Secretary of State has identified, having carried out the appropriate overall consideration, as being determinative of the matter? Put in one way -- and this is something that the Secretary of State has relied upon -- the question could be approached by asking whether Lord Slynn in paragraph 18 in Mohammed in describing the _prima facie_ meaning of normal or ordinary residence, gave a description and explanation which could be attacked as failing to refer expressly, on its face, to the other balancing factors that have to be taken into account in the test.
- A starting point for the analysis is paragraph 12 of the determination which makes it clear that the Secretary of State has taken into account the guidance I have referred to which correctly describes the approach, the decision in Quinn to which I have referred which goes essentially to the deeming provision, the central decision of Shah and also the decision of Vale. That paragraph therefore shows that the Secretary of State has pointed himself or herself in the correct direction and has hit the right target as to the tests that have to be applied. The issue, therefore, arises as to whether or not the determination indicates that that criteria or test has been properly understood and properly applied.
- The Secretary of State points essentially to paragraph 31 of the determination for the reason given for the conclusion reached:
- In that context it is said that that reason demonstrates -- as indeed do all the authorities referred to -- that where Mrs D was actually living is an important fact. The authorities referred to all come to a conclusion that where the relevant person was actually living was the place of their ordinary residence. What is said on behalf of the Secretary of State is that that reason identifies the essential reason for the conclusion having balanced the relevant factors. I think there is little doubt that the determination could have been better expressed to convey that message.
- On behalf of Greenwich I was pointed in particular to the letter refusing to review the decision and in particular to the following passage therefrom:
- An earlier letter was also referred to by counsel for Greenwich containing passages to similar effect. That is a letter dated 23rd May 2005. It seems to me that that letter is not part of any decision making process, but is a letter that was arguing the case after the challenge to the first decision. I quote passages from it:
- Then later in the same letter:
- I accept that there is real force in the assertion that those passages point towards a conclusion that the Secretary of State took an inappropriate course to the application of the criteria, and the conclusion that the thinking of the Secretary of State was that, because there was no place available for Mrs D in Bexley, that was the end of the matter and was of itself determinative.
- I have, however, concluded that taking (a) the entirety of the determination, in particular its recitation of facts and of the letters together and (b) the express reference by the Secretary of State to the relevant test which identifies the appropriate criteria, that that is not the approach that the Secretary of State has taken in this case. I accept the submission that what the determination is saying is that, given all the factors that have to be taken into account, as in cases such as Mohammed and Vale, the key factor is that here Mrs D did not have anywhere to live in Bexley any longer and was actually living in Greenwich, and that the other factors that fall for consideration do not outweigh the force to be given to those points in determining Mrs D's ordinary residence.
- It seems to me that the attacks are ones on deficiencies in the description of the approach and reasoning which have been developed over the period of this litigation. If one looks at the submissions actually made to the Secretary of State on the first round, they do not contain a number of the points that have been argued before me. That is a natural development. It is not a criticism. It is something that happens fairly regularly in cases such as this where the law tells one there is an issue of fact to be decided by reference to the interpretation of ordinary English words and the more one thinks about it the more one can bring further factors into the equation.
- I am also reinforced in this view by looking at and considering the weight of the other factors as they exist in this case. The factors include the point relating to the desirability of a local authority retaining a duty to the relevant person and therefore a factor that ordinary residence in Bexley would not be lost. The factors also include the overarching position as to the relevant intention either of Mrs D or of the relevant decision makers. The clear picture, as I see it, is that there was a state of flux, there was a state of uncertainty. Mrs D could have remained in Greenwich for days, weeks, months. It seems to me that all of those factors pointing against a conclusion that she had acquired and had an ordinary residence in the place where she actually was are not strong ones. It is therefore to my way of thinking understandable that they were not highlighted in the determination of the Secretary of State. I have also made the point that a number of them were not highlighted in the submissions made to the Secretary of State.
- It follows that, although I accept that some criticism can be made of the reasoning advanced by the Secretary of State and its explanation in later correspondence, at heart, in my judgment, the Secretary of State has identified the correct criteria. She has reached a conclusion and in reaching that conclusion has identified what, on any view, is an important factor, and the factor which, having regard to the test, was the factor which the Secretary of State concluded determined the issue in this case. For those reasons, I dismiss the application.
- MS MORRIS: My Lord, I note there is a stand-in for Mr Rutledge. Nevertheless what I would propose in relation to costs is that the appropriate order in this case is no order for costs. I particularly say that because in relation to the second issue, upon which my Lord has just adjudicated, namely the way in which the question of relevant factors should be dealt with was expressly dealt with by the Secretary of State in his pleadings. If one looks at pages 57 and 60 of the bundle, I say that there, again, Greenwich was -- if you look at page 57, paragraph 15. There the Secretary of State says in terms that if she is not resident in a particular place in Bexley, then she cannot be resident in that area, and then again at page 60.
- Now, Greenwich pursued this case on the basis in combination with that pleading with the correspondence to which we took you, that that was the way in which the Secretary of State had approached this decision. Now, he said -- something different was said in the course of the hearing, substantially different, in response in the progress of the argument, and in my submission it would be quite unfair for Greenwich to be penalised on costs.
- Really a similar approach was taken in relation to Quinn. Again, if one looks back to the pleadings and the correspondence, what was being said was that Quinn was authority for a proposition which, when it was pressed and explored by my Lord, in fact was found to say something rather different.
- In those circumstances, although it is fair to say that the Secretary of State has successfully defended this application, it is not on the basis on which he put forward his defence until the hearing.
- MR JUSTICE CHARLES: That's a pretty first bowl for a pupil. How are you feeling about that?
- MR LEWIS: My Lord, I am standing in for Mr Buley who has other commitments this afternoon I regret to inform you. My Lord, my instructions were that there was agreement that this application could be made subject to detailed assessment for costs and that there was agreement between the parties so far as that is concerned. Clearly there appears to have been some movement since those instructions were given to me earlier by Mr Bulely, so I am in a position of some difficulty given my skeleton instructions at present.
- MR JUSTICE CHARLES: Do you have any submissions to make on costs?
- MR RUTLEDGE: My Lord, my instructions are to ask for costs against Greenwich. The costs really fall into two parts: firstly, our costs of filing the evidence and note, and then our costs of being here today. I take on board, my Lord --
- MR JUSTICE CHARLES: It seems to me that if Greenwich have to pay any costs, it is only one lot of costs.
- MR RUTLEDGE: My Lord, respectfully, it is in the nature of commercial litigation. There is a lot of money at stake in this case and it was reasonable for Bexley, in my submission, to make representations. My Lord has expressed his view as to how the parties might otherwise have proceeded, but we were here to defend the position and in my submission costs should follow the event. But I put it on those two bases, the cost of the initial response, there seems no reason why Bexley should not have those costs, and the costs of today. Subject to detailed assessment.
- MR JUSTICE CHARLES: How out of date am I on the basis that you only ever get one set of costs?
- MR RUTLEDGE: There is no duplication of costs. There are two parties effectively in the case. We are the interested party, but we have been joined in the proceedings. We have both entitled to our incurred costs. It is not an either or.
- MS MORRIS: My Lord, I am afraid I don't quite accept that analysis. What happens in public law proceedings is that one serves an interested party and it is then a matter for the interested party the extent to which he engages with these proceedings. Now, first of all, in terms of the analysis adopted by Mr Rutledge in relation to the submission of documentation, and then, secondly, representation, I would say perhaps can I deal more easily with representation. While, of course, it is always a joy to have Mr Rutledge in court and hear what he has to say, it has not been necessary, nor has it particularly added anything, particularly because essentially the position of Bexley is to adopt what the Secretary of State says. In those circumstances it certainly would not be appropriate for Greenwich to bear those costs.
- In terms of the making of submissions, again, I would say what I said earlier equally applies, namely that to the extent which is to its entirety that Bexley adopted what the Secretary of State said and because of the criticism I made about the way in which the Secretary of State dealt with this case, namely not by saying, "You are absolutely right about Quinn, Greenwich" and "You are absolutely right about what you say", but in fact that is the way we dealt with it which would have put us in a very different position. It seems to me that the situation as between Greenwich and Bexley must fall to be determined in the same way.
- In those circumstances, it seems to me that perhaps the most effective way of dealing this matter, given its unhappy history, is to say no order as to costs.
- MR JUSTICE CHARLES: At the moment I feel that any order I make as to costs must be subject to the Secretary of State being entitled to make submissions through counsel who has been here throughout. I think it would be unfair to land that. This is not something that you raised with Mr Buley?
- MS MORRIS: I have to say for myself I was not aware at any point of agreeing anything about costs. I certainly did not knowingly do it or consciously do it. I wonder, in those circumstances, whether the appropriate thing is for Mr Buley and I to submit representations -- written submissions to you, my Lord, so that he is not ignorant of anything that I might have said this afternoon and we can do that within a few days and leave my Lord to deal with it in that way. I don't know whether that's the fairest thing to do.
- MR JUSTICE CHARLES: Well, my preliminary view on costs is this. I think it should be one set of costs in play and the respondents will have to sort out how they deal with that amongst themselves. I don't think there was a need for separate representation so far as they were concerned. I have made my points about that. I think there is fault on both sides in the pleading sense. I think there is force in the point that through the reasoning put forward by the Secretary of State and its explanation that in some measure they brought these proceedings on themselves. What I would be minded in those circumstances, having regard to the fact that you have actually lost, is that you would pay one half of one set of costs. That would be one that is divided between Bexley and the Secretary of State in a way which they would think appropriate. If I had to decide it, I would simply say you have to pay one quarter of the total of their costs. Is that how it would work?
- MS MORRIS: May I just turn my back for a moment and just to see whether that is ... (Pause). My Lord, certainly we would accept, my Lord, that we pay a quarter of the total costs of the Secretary of State and Bexley for them to decide how that might --
- MR JUSTICE CHARLES: In default of agreement between them, I will say those should be divided 75 per cent to the Secretary of State and 25 per cent to Bexley, because the Secretary of State has done most of the arguing and Bexley had a minor role which I think one or both of you should have avoided so far as this case is concerned, but that may be the benefit of hindsight. If the Secretary of State wishes to make submissions contrary to that conclusion, then I will give them liberty to do so in writing provided they do it within seven days of today, and then you can respond and Mr Rutledge, if he wishes to enter the argument, he can do so as well, but I don't think he will get much joy in having his costs looked at separately.
- MS MORRIS: My Lord, one of the things that occurs to me is the dispute that arose between Greenwich and Bexley is, of course, one that frequently arises and then is one that the Secretary of State has regularly to adjudicate. My Lord has made some determinations in relation to the law which do seem at variance to the way in which the Secretary of State certainly put what he thought was the correct position in those proceedings. It seems to me it would be assistance to everyone, perhaps if I can stand in the Secretary of State's shoes, for him to have a transcript, not least for other authorities, reasonably promptly and I wonder whether it is worth saying anything now about how that might be affected?
- MR JUSTICE CHARLES: Anyone is entitled to get a transcript.
- MS MORRIS: I just wonder whether anything can be said about its expedition or production, or whether that would assist people more broadly. I am really just speaking on behalf of all -- of everyone at the Bar on this point. I am currently aware of many clients of my own who are currently involved in disputes before the Secretary of State where these issues are, so the sooner people have notice of this.
- MR JUSTICE CHARLES: As and when somebody asks for a transcript, perhaps it can be expedited.
- THE CLERK OF THE COURT: My Lord, there is an automatic transcript of substantive hearings and the shorthand writers will get a draft to you -- well, they are contracted within ten days.
- MR JUSTICE CHARLES: Well, the shorthand writer will do it within ten days. How expedited I will be is a different matter altogether. Whether I meet the same timetable, I don't know. I will get it to you when I have done it.
- MS MORRIS: Whatever my Lord can do by way of assistance it would be very helpful.
"Each local authority --
(a) shall, within such period after the day appointed for the coming into force of this section as the Secretary of State may direct, prepare and publish a plan for the provision of community care services in their area; ...
Section 46(3) reads:
"In this section --
'local authority' means the council of a county, [a county borough,] a metropolitan district or a London Borough or the Common Council of the City of London;
'community care services' means services which a local authority may provide or arrange to be provided under any of the following provisions ..."
Section 47 (1) reads:
"Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority --
(a) shall carry out an assessment of his needs for those services; and.(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
"Duty of local authorities to provide accommodation
21(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 18 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 ..."
"In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person, a local authority shall disregard so much of the person's resources as may be specified in, or determined in accordance with, regulations made by the Secretary of State for the purposes of this subsection.
"No resident shall be assessed as unable to pay for his accommodation at the standard rate if his capital calculated in accordance with regulation 21 exceeds [and then the figures of £20,000 and £21,000 are included in the copy I have] prescribed for the purposes of section 1341 of the Contribution and Benefits Act."
At the relevant time the relevant capital figure was £19,000.
"21(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 or, to such extent as may be [determined in accordance with the arrangements] under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.
(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.
...
22. Charges to be made for accommodation
22(1) [Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make] in accordance with the following provisions of this section.
...
24. Authority liable for provision of accommodation
24(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.
...
(3) Where a person in the area of a local authority --
(a) is a person with no settled residence, or(b) not being ordinarily resident in the area of the local authority, is in urgent need of residential accommodation under this Part of this Act.
the authority shall have the like [power] to provide residential accommodation for him as if he were ordinarily resident in their area.
(4) Subject to and in accordance with the [arrangements] under section 21 of this Act, a local authority shall have power, as respects a person ordinarily resident in the area of another local authority, with the consent of that other authority to provide residential accommodation for him in any case where the authority would have a duty to provide such accommodation if he were ordinarily resident in their area.
(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.
(6) For the purposes of the provision of residential accommodation under this Part of this Act, a [patient in a hospital vested in the Secretary of State[, a Primary Care Trust, or an NHS trust [, an NHS Trust or an NHS Foundation Trust] shall] be deemed to be ordinarily resident in the area, if any, in which he was ordinarily resident immediately before he was admitted as a patient to the hospital, whether or not he in fact continues to be ordinarily resident in that area.]"
"26. Provision of accommodation in premises maintained by voluntary organisations
[(1) Subject to subsections (1A) and [(1C)] below, arrangements under section 21 of this Act may include arrangements made with a voluntary organisation or with any other person who is not a local authority where --
(a) that organisation or person manages premises which provide for reward accommodation falling within subsection (1)(a) or (aa) of that section, and.(b) the arrangements are for the provision of such accommodation in those premises.
(2) Any [arrangements made by virtue of ... this section] shall provide for the making by the local authority to [the other party thereto] of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements [and subject to subsection (3A) below the local authority shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this section].
(3) [Subject to subsection (3A) below] a person for whom accommodation is provided under any such arrangements shall, in lieu of being liable to make payment therefor in accordance with section 22 of this Act, refund to the local authority any payments made in respect of him under the last foregoing subsection."
32. Adjustments between authority providing accommodation, et cetera, and authority of area of residence.
...
(3) Any question arising under this Part of this Act as to the ordinary residence of a person shall be determined by the Minister."
"The purpose of the circular is to clarify where possible where responsibility lies between social services authorities, so that the scope for disputes is reduced. Authorities should note in particular that the provision of services for individuals requiring social services should not be delayed because of uncertainty about which authority is responsible, and that when an individual does not appear to have any settled residence, it is the responsibility of the authority of the moment to provide any residential care required to meet their needs."
"There is no definition of 'ordinarily resident' in the Act and the term should be given its ordinary and natural meaning subject to any interpretation by the courts. The concept of ordinary residence involves questions of fact and degree, and factors such as time, intention and continuity, each of which may be given different weight according to the context, have to be taken into account."
"People who are Placed in Accommodation in the Area of Another Local Authority
7. Where, following an assessment, a local authority arranges a placement in a private or voluntary home in another authority's area or in a home provided by another local authority the placing authority will normally retain for that person the same responsibility that it has for someone living in its own area. The person so placed will not as a general rule become ordinarily resident in the other local authority's area. If consequently, by private arrangement, the person moves he may, depending on the specific circumstances, become ordinarily resident in the area of the local authority where he has chosen to live."
Also paragraph 8:
"8. A local authority should not place a person for whom they are financially responsible in accommodation provided by a private proprietor or a volunteer organisation in the area of another authority without informing the other authority. They should also ensure that satisfactory arrangements are made before placement for any necessary support services, such as day care, and for periodic reviews, and that there are clear agreements about the financing for all aspects of the individual's care. The local authority responsible for the placement may negotiate for these services to be provided by the host authority and reimburse the costs. Similarly, except in an emergency situation, no host local authority should alter the accommodation or services provided for that person to a significant degree without consulting in advance the responsible local authority. It is recognised that there will be some circumstances where an urgent placement is necessary, and prior consultation will not be possible. In such cases the necessary consultation should take place immediately after the placement has been made."
"People who Move to Residential Accommodation of their own Volition
10. When an individual arranges to go into permanent residential or nursing home care in a new area, without any local authority having taken responsibility for the arrangements, they usually become ordinarily resident in the new area. If subsequently social services help is sought the person will look to the authority where the residential accommodation is situated. The local authority in the original area may become aware of the arrangements the individual is making and, with the permission of the person concerned, they should inform the local authority for the new area, particularly if it seems possible that social services help may later be required."
"The Meaning of Ordinarily Resident
Case Law
12. The meaning of 'ordinarily resident' or ordinary residence' has been considered by the Courts, and regard must be had to such cases as:-
(i) Shah v London Borough of Barnet (1983) Lord Scarman stated that 'unless ... it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he had adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration'.
(ii) Levene v IRC (1928) Viscount Care said that 'ordinary residence' connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.
13. In general, an adult with learning disabilities should be regarded as capable of forming his own intention of where he wishes to live. The case of R v Waltham Forest London Borough Council, ex parte Vale (1985) should be noted. In this case it was held that a person with severe learning disabilities who was totally dependent on his parents was to be treated as ordinarily resident at his parents' address since he was in the same position as a small child who is unable to choose where to live. This case will need to be considered if there is an ordinary residence dispute involving people with severe learning disabilities but its relevance will vary in accordance with the ability of the person with learning disabilities to make choices and the extent to which they rely upon their parents. In some cases some other person(s), or body, may be acting in place of their parents. In a recent decision of the High Court in December 1992 London Borough of Redbridge ex parte East Sussex County Council the principles outlined in Vale were applied where the parents of young adult twins with learning disabilities who had been ordinarily resident in Redbridge left this country to live in Nigeria and soon after their departure the residential school in East Sussex attended by the twins closed. At this point the twins were held by the court to have no settled residence. As they were in the area of East Sussex it was held that no duty to provide for them fell on Redbridge as they were not ordinarily resident there, but that there was a duty to make provision under the relevant legislation on East Sussex as they were in that county and had no settled residential.
Discharge from hospital, Nursing Homes, Prison and other Similar Establishments
14. Section 24(6) of the NA Act provides that a patient in an NHS hospital or NHS trust hospital shall be deemed to be ordinarily resident in the area in which he was ordinarily resident before he was admitted to hospital. If they were not ordinarily resident in any area prior to their admission, then the powers in section 24(3) are applicable. Local authorities could reasonably apply this approach when considering responsibility for people leaving prisons, resettlement units and other similar establishments without a permanent place to live who will require social services involvement at the time of their discharge. No case law exists however, and any dispute must be resolved in the light of the specific circumstances.
...
Homelessness Legislation
16. The test of 'ordinary residence' is not the same as that of 'local connection' used in the homelessness legislation for establishing which housing authority has the responsibility for securing accommodation for homeless applicants in priority need. When a person states that he has no settled residence or describes himself as NFA (no fixed abode) the social services authority where he presents himself should normally accept responsibility. For a person in urgent need, the social services authority of the moment cannot argue that the possible existence of a 'local connection' elsewhere excuses it from the duty to assess and provide any necessary social services; decisions on where the responsibility for the funding of such services rest, based on ordinary residence, should be decided subsequently. Rules for determining responsibility under Housing Acts should not be used to identify ordinary residence for social services purposes. Any outstanding ordinary residence questions should be clearly recorded in social services records at the time they arise. Failure to do this may prejudice consent consideration.
17. 'Local connection' for housing purposes (defined in section 61 of the Housing Act 1989, and discussed further in the statutory Homelessness Code of Guidance for Local Authorities 3rd edition) may be established by present or past settled residence in an area, by employment in that area, by family connections, or other special circumstances."
"1. I am asked by the London Borough of Greenwich (Greenwich) and the London Borough of Bexley (Bexley) to make a determination under section 32(3) of the National Assistance Act 1948 (the 1948 Act), for the purposes of that Act, of the ordinary residence of Mrs D. The two local authorities are in dispute as to which of them has responsibility for providing services to Mrs D under Part III of the 1948 Act. The following facts are derived from the agreed statement of facts and from other documents submitted by the two local authorities.
2. Mrs D (date of birth 31st May 1928) was admitted to Queen Mary Hospital on 14th March 2001. Following her discharge from hospital, on 13th May 2001, Mrs D was admitted to [the care home in Bexley] for EMI care in Bexley.
3. Mrs D owned a property in the Bexley area and sold it in June 2001 after being placed in [the care home]. Mrs D was assessed as a full cost resident and Bexley wrote to Mrs D's son offering him a three month property disregard contract.
4. Staff at [the care home] reported that they had been experiencing difficulties with Mrs D who was exhibiting aggressive behaviour. In a letter dated 22nd May 2002, Mrs D's son, Paul D (Mrs D has two sons -- Mark and Paul), wrote to Bexley, confirming a telephone conversation in which he agreed the council should complete all panel forms and consider a move to more suitable accommodation.
5. On 22nd May 2002, Mrs D was presented to Bexley Council's joint Assessment Panel. The recommendation was that Mrs D was no longer suitable for accommodation in a residential home and that she either be placed in an EMI nursing home or in NHS care as an in-patient. Bexley advised Mrs D's family that she needed to be moved to a nursing home.
6. Notes of telephone conversations made by Bexley on 22nd and 23rd May 2002 indicate that two possibilities other than [another nursing home] were considered by the council (Leyton and Camden wards and Woodlands unit) but were either unsuitable or did not have beds available.
7. Mrs D was placed in [the nursing home] in Greenwich on 27th May 2002. Prior to this time it is accepted by both parties that Mrs D was ordinarily resident in Bexley.
8. At the time that Mrs D was admitted to [the nursing home in Greenwich] she had capital of £21,308. After four weeks and five days, she reached the £19,000 threshold and was no longer self-funding.
9. Bexley contend they did not place Mrs D [in the nursing home in Greenwich]. On 27th May 2002, Bexley Council Social Services wrote to Mrs D's son Mark. The letter states that 'Bexley Council will not be involved in direct negotiations with your chosen home, and all contractual agreements between yourselves and the proprietors of [the home] will be regarded as private arrangements. If you decide to choose a home outside Bexley, Mrs D will become the responsibility of the local authority where the home is located'. It also informs him that when the £19,000 threshold is reached, the local social services department will need to be approached (it does not indicate that this is Greenwich).
10. Greenwich only became aware of Mrs D's situation in October 2002. In October 2003, Greenwich informed Bexley that they would, without prejudice, assume interim responsibility for Mrs D until the dispute could be resolved.
11. Greenwich submit that Mrs D did not voluntarily adopt residence in Greenwich, arguing that Mrs D's placement in [the nursing home in Greenwich] was arranged by Bexley, based in part on a letter of 12th May 2003 from [the nursing home in Greenwich] to Bexley which states that is D was placed as an 'emergency by Bexley Social Services arranged by social worker Karen Springate'. Greenwich argue this was a temporary placement, citing a letter of 14th January 2004 from [the nursing home in Greenwich] which states that the case was to be reviewed by Bexley to consider a longer term placement. There is no evidence such a review was ever undertaken by Bexley. Mrs D was still at the [nursing home in Greenwich] at the time the application for a determination of ordinary residence was made.
...
20. It appears that Bexley treated Mrs D as a person without capacity and made the decision to place her in [the nursing home in Greenwich] on the basis that it was in her best interest to do so. Her sons were consulted on the question of nursing home accommodation and raised no objections to the Council's decision.
21. I do not accept that either Paul or Mark D chose the new accommodation. Bexley, having considered other options, decided to arrange for Mrs D to go to [the nursing home in Greenwich]. Although Paul D agreed to the panel assessment of his mother and agreed that Bexley could move her to more suitable accommodation, he did not chose [the nursing home in Greenwich], nor did he arrange his mother's move.
...
26. No contractual arrangement was made by Mrs D, her sons or Bexley with [the nursing home in Greenwich] for the payment of fees at the relevant time. Mark D was informed by Bexley that the council would not be making contractual arrangements with [the nursing home in Greenwich] and that the local social services department might have to be approached when self-funding ceased. There is no evidence that [the nursing home in Greenwich] received any information in record to responsibility for payment at the time of the move and they assumed that Bexley would pay the fees.
27. I find that, although Mrs D's move to [the nursing home in Greenwich] was facilitated by Bexley, no contractual arrangement was made between [the nursing home in Greenwich] and Bexley made no payments to [the nursing home in Greenwich]. This did not constitute providing Part III accommodation. Facilitating or make arrangements for a move is not the equivalent of providing accommodation."
"Bexley's Joint Assessment Panel has considered Mrs D's assessment of need, and has formed the view that the type of Home which can best meet Mrs D's needs is an EMI nursing home.
If Mrs D is in hospital, it is the Panel's belief that many people will wish to return home with community support whilst awaiting placement. Mrs D's care manager or social worker and possibly consultant may wish to discuss this with you.
Bexley's Commissioning Officer ... will be able to offer general advice and assistance to enable you to select a home in your chosen area.
Bexley Council will not be involved in direct negotiations with your chosen home, and all contractual arrangements between yourselves and the proprietors of the home will be regarded as private arrangements.
If you decide to choose a home outside Bexley, Mrs D will become the responsibility of the local authority where the home is located, and when Mrs D's assets fall below the current £19,000 threshold, Mrs D will need to approach the local social services department for financial assistance their cost of care.
Please do not hesitate to call the commissioning officer who will be more than happy to discuss any queries you may have.
If you or Mrs D have any queries or questions or wish to appeal against the Panel's decision, or complain about any element of the service you receive, please do not hesitate to contact me."
"The dispute between Bexley and Greenwich concerning with whom the responsibility lies we think has gone on long enough and therefore are not prepared for this to go any further without settlement.
As Mrs D was originally placed by 'Bexley Social Services' who we consider are responsible for the fees as per the enclosed invoice showing charges from 27th May 2002 to 30th June 2003."
Then the figure is given asking for settlement.
"I can confirm that Mrs D was admitted [to that residential home from the residential home in Bexley].
I contacted [the residential home in Bexley] and they confirmed that Mrs D was transferred to [us] as an 'emergency' placement after consulting the Social Services Department. They stated that the case would be reviewed by the panel at Bexley Social Services (Commissioning Department) to consider a longer term placement. The social worker involved was Phil Bailey ... and this is confirmed in the resident's clinical notes.
Social services would have informed our office that the placement was an emergency initially pending further review of the client's needs.
During her period of residence at [the home in Bexley] and when she had transferred [to the home in Greenwich] all correspondence including doctors' letters were addressed to Bexley Social Services.
We were informed by Pam Jenner that Mrs D would be self-funding for one month. Future funding would be met by the local authority. Mr D agreed and has settled his account accordingly."
"In brief Mrs D was first presented to Bexley's Panel on 9th May 2001 and subsequently placed at a Bexley home on 13th June 2001. Mrs D was assessed as a full cost resident. Mrs D's son completed a three month property disregard contract. In May 2002 Mrs D's mental needs increased. She became violent to other residents and had to be moved urgently. Mrs D was re-presented to Bexley's Panel who agreed to EMI nursing care on 22nd May 2002. Mrs D was subsequently moved to [the nursing home in Greenwich] which we understand is a Greenwich run nursing home."
"The words 'ordinary residence' were considered by this House in two tax cases reported in 1928. In each, the House saw itself as seeking the natural and ordinary meaning of the words. In Levene v Inland Revenue Commissioners [1928] AC 217, 225, Viscount Cave LC said:
'I think that [ordinary residence] connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.'
In Inland Revenue Commissioners v Lysaght [1928] AC 234, 243 Viscount Sumner said:
'I think the converse to 'ordinary' is 'extraordinarily' and that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not 'extraordinary'.'
In Levene's case Lord Warrington of Clyffe said, at page 232:
'I do not attempt to give any definition of the word 'resident'. In my opinion it has no technical or special meaning for the purposes of the Income Tax Act. 'Ordinarily resident' also seems to me to have to such technical or special meaning. In particular it is in my opinion impossible to restrict its connotation to its duration. A member of this House may well be said to be ordinarily resident in London during the Parliamentary session and in the country during the recess. If it has any definite meaning I should say it means according to the way in which a man's life is usually ordered.'
It was urged upon your Lordships by counsel for Brent and Barnet Borough Councils (but not, as I understood her ultimate position, by council for the Shropshire County Council) that these two decisions of the House were authority only for a special meaning limited to the Income Tax Acts. The converse is the case. The true reading of the speeches delivered is that the House decided to construe the words in their tax context as bearing their natural and ordinary meaning and words of common usage in the English language: note particularly the words of Lord Warrington of Clyffe. In the present cases Lord Denning MR adopted the same view of the natural and ordinary meaning of the words: for in his judgment he said [1982] QB 688, 720:
'Traditionally we ought simply to apply the natural and ordinary meaning of the two words 'ordinarily resident' in the context of [the Education Act 1962] ... If we were to do that here, I feel I would apply the test submitted by Mr Lester. The words 'ordinarily resident' mean that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration. On that test all [the] students would qualify for a mandatory award.'
Strictly, my Lords, it is unnecessary to go further into such case law as there is in search of the natural and ordinary meaning of the words. In 1928 this House declared it in general terms which were not limited to the Income Tax Acts. Lord Denning has reaffirmed it in 1981, thus showing, if it were needed, that there has been no significant change in the common meaning of the words between 1928 and now. If further evidence of this fact is needed (for the meaning of ordinary words as a matter of common usage is a question of fact), the dictionaries provide it: see, for instance, Oxford English Dictionary sv 'ordinarily' and 'resident'. I, therefore, accept the two tax cases as authoritative guidance, displaceable only by evidence (which does not exist) of a subsequent change in English usage. I agree with Lord Denning MR that in their natural and ordinary meaning the words mean 'that the person must be habitually and normally he is resident here, apart from temporary or occasional absences of long or short duration.'
The significance of the adverb 'habitually' is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes."
"There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, for example in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence (even though in a tax case the Crown may be able to do so): in In re Abdul Manan [1971] 1 WLR 859, and R v Secretary of State for the Home Department ex parte Margueritte [1982] 3 WLR 753, CA. There is, indeed, express provision to this effect in the Act of 1971, section 33(2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully.
There are two, and no more than two, respects in which the mind of the 'propositus' is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is.
And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the 'propositus' intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
The legal advantage of adopting the natural and ordinary meaning, as accepted by the House of Lords in 1928 and recognised by Lord Denning MR in this case, is that it results in the proof the ordinary residence, which is ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind. Templeman LJ emphasised in the Court of Appeal the need for a simple test for local education authorities to apply: and I agree with him. The ordinary and natural meaning of the words supplies one. For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose."
Those are passages which have been cited to me.
"18. It is clear that words like 'ordinary residence' and 'normal residence' may take their precise meaning from the context of the legislation in which they appear but it seems to me that the _prima facie_ meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves to a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is 'shelter' but it is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant's authority's argument, prevent it from being such."
"... I find that she [that is Mrs D] ceased to be ordinarily resident in Bexley whether or not her move was voluntary. Her house had been sold and she was no longer living in the area, therefore her ties with Bexley were severed."
"Further, the Secretary of State does not accept that it is open to her to conclude that in the periods between 27th May and the date in late June 2002 when Mrs D became eligible for assistance with funding, that Mrs D remained ordinarily resident in Bexley. This is on the basis that at that point, Mrs D had no actual residence in Bexley and there is no deeming provision in the 1948 Act which applies to her case."
"Mrs D's place of ordinary residence became Greenwich at the time of her move to [the residential home]. If her move was not voluntary, then the question is whether Mrs D had retained an ordinary resident elsewhere or had become of no settled residence. On the facts it would not appear possible to conclude that Mrs D had retained her ordinary residence in Bexley since she no longer had any accommodation there to which she could return."
"on the basis of these cases, it does not seem possible to conclude that Mrs D remained ordinary residence in Bexley since she no longer had any accommodation there.
... The Secretary of State's view is that in such cases the only sensible approach is therefore to draw a conclusion from the facts. Given that, in the light of the case law, it does not seem possible to conclude that Mrs D remained ordinarily resident in Bexley after her move to the [residential home in Greenwich], the two alternatives are either that, by the time she needed assistance from the local authority, she had become ordinarily resident in Greenwich or that she was of no settled residence."