Barking And Dagenham, R (On the Application Of) v Secretary of State for Health, Court of Appeal - Administrative Court, October 05, 2017, [2017] EWHC 2449 (Admin)

Issuing Organization:Administrative Court
Actores:Barking And Dagenham, R (On the Application Of) v Secretary of State for Health
Resolution Date:October 05, 2017
 
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Neutral Citation Number: [2017] EWHC 2449 (Admin)

Case No: CO/1773/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 5 October 2017

Before :

JUSTINE THORNTON QC

(sitting as a Deputy High Court Judge)

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Between :

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Kelvin Rutledge QC (instructed by LB Barking and Dagenham) for the Claimant

Tim Buley (instructed by the Secretary of State for Health) for the Defendant

Deok Joo Rhee QC (instructed by LB Redbridge) for the First Interested Party

The Second Interested Party did not appear

Hearing date: 14 September 2017

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Justine Thornton QC :

Introduction

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

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

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

  4. The specific issues that arise are as follows:

    i) did the hiatus in HR's care in August 2012 trigger the section 21 duty on Redbridge? This turns on the question of whether the hiatus meant HR's care needs could only be met by the provision of residential accommodation under the section, which is a precondition for its application. It is common ground that the other preconditions are satisfied, namely that HR was in need of care and attention by virtue of his mental disabilities (issue i).

    ii) If the section 21 duty on Redbridge was triggered, does the deeming provision in section 24(5) apply for so long as HR receives care and assistance under Part 3 of the NAA or only for so long as accommodation was provided under section 21. The practical significance of this issue is that the funding dispute between the two local authorities relates to the period from July 2013. If, as Barking contend, the deeming provision in section 24(5) continues to apply whilst care is provided under Part 3, Redbridge remains responsible for HR's care beyond April 2013 and through July 2013 when HR's care was provided pursuant to section 29 of the Act (issue ii).

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

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

    Factual Background

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

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

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

  10. From August 2012 to April 2013, Redbridge undertook a review to decide how to resolve matters. The views of HR's parents; his independent advocate; a clinical behavioural specialist; a psychiatrist and his care providers were fed into the review. Following the review it was decided: firstly that HR could no longer be supported at home; secondly HR was clearly indicating that he wished to live at the Barking...

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