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Ghosts in the judicial review machine (or, “I think it’s going to be a long, long time”)

 

A discussion of the decision of R and Naureen Hyatt and Salford City Council 2012   (which relates to judicial reviews, costs disputes and accommodation under section 21 of the National Assistance Act 1948 as it pertains to failed asylum seekers, so I hope you will forgive me for a flight of fancy and digression to liven it up)

 

I once read that the screen-writing Coen Brothers use a particular technique in creating tension in their films. They write a scene, and box the character into a corner, a predicament that there is no possible way out of.  They bat around possible solutions until they exhaust all possible exits that they can think of.

 

Then they leave the script for a week, a month, however long it takes, until they have hit upon an escape mechanism for that predicament – the idea being that if they are genuinely stumped at how to escape the scene, the audience won’t be likely to be able to second guess in a few moments the solution that took them months to hit upon.

 

 

In Ancient Greece, when playwrights constructed their plays, usually involving a combination of philosophy, fine wordplay and frogs, they often found that they had boxed themselves into a corner. The hero was faced with a situation that could not possibly be resolved.  A grisly death, a broken heart, an unsolveable dilemma, was all that lay ahead.  How to deliver a happy ending?

 

And their solution to this was the deus ex machina, the ghost in the machine. A crane type device would be used to lower an actor into the stage or arena, the actor playing a God. Of course, the God could solve any problem in an instant, resolve any dilemma, any drama.  That was a boon to the playwright, but of course robs the scene of any dramatic tension.

 

Imagine if you were watching an episode of 24 and Jack Bauer was trapped inside a volcano  in Hawaii that’s about to erupt, he is handcuffed to  the steering wheel of his car, and the ignition keys are in the beak of a paramilitary parakeet who we have just watched fly away, and then he learns that a nuclear bomb is about to go off at the Hoover dam in just two minutes and only his fingerprint can stop the bomb and then the credits roll. Tense, or what?   

 

volcano

 

If you tune in the following week, to see God fly down into the volcano, stop time and instantly transport Jack to the Hoover damn and unlock his handcuffs, you might feel disappointed by this resolution.  The next time there is a cliffhanger, you won’t feel apprehensive and nervous about how Jack will get out of it, you’ll just think “Ah, God will come down and sort it out”    – in short, the cheap device used to get the writers out of a tough spot will just make you feel cheated.

 

[The way I did when watching the black and white serial Rocket Man aged 12, when a “cliffhanger” showed a car in which Rocket Man was locked in the trunk plummet off a cliff, clearly showing that it went over the edge and that nobody got out of it so he was undoubtedly dead, and next week’s episode began  with completely different footage of him jumping out before it went off the cliff.   I remain bitter about this, to this very day, and I never watched another episode]

 

rocket man 

 

 

Curse you Rocket Man! !!

 

So, deus ex machina became frowned on as a narrative device, and to this day are viewed as a bit of a cop out, or cheap flimsy storytelling.

 

 

Anyway, on to the case,

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1795.html

 

 

Essentially, the claimant was a failed asylum seeker and wanted the Local Authority to provide him with accommodation under section 21 of the National Assistance Act 1948.

 

  1. Section 21 of the 1948 Act provides:

“(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 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; and

(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them

(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely —

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute.”

 

So, his being a failed asylum seeker makes it very hard for him to get accommodation under s21, and he claimed his need was not as a result of destitution or physical effects of destitution, and the LA claimed that it was.

 

 Various demanding and defying letters were exchanged and a judicial review was issued.

 

By the time the case got into a substantive hearing, the claimant had managed to overturn the immigration authorities decision that his asylum claim was refused. That then gets rid of s 21 (1A) as a relevant factor.

 

Accord was reached that he would be provided with accommodation and the claim was withdrawn.

 

There then followed a debate about costs – the Claimant claimed that he should win his costs because he had achieved his desired result but had had to bring a JR case to do it, the LA claimed that costs should not be paid as the issue had not been litigated and the Claimant might well not have been successful if it had been.

 

The Judge decided that it was not possible to determine which side would have won had the issue been litigated, and made no order as to costs.

 

The Claimant appealed.

 

The relevant legal authority on this vexed issue of where costs fall in a JR case where the matter is settled rather than litigated is set out in  Re M  v Croydon LBC  2012

 

 

  1. On 8th May 2012 the Court of Appeal handed down its decision in R (M) v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607. The claimant in that case was an asylum seeker, whose age was in dispute. The claimant brought judicial review proceedings to compel the defendant local authority to reassess his age. The action ultimately settled in the claimant’s favour, leaving only the question of costs to be determined by the court. Lindblom J decided that there should be no order for costs. The Court of Appeal allowed the claimant’s appeal and ordered the defendant to pay the claimant’s costs.
  1. Lord Neuberger MR gave the leading judgment, with which Hallett and Stanley Burnton LJJ agreed. At paragraphs 47 to 64 Lord Neuberger gave general guidance as to how costs should be dealt with following a settlement. In the latter part of that passage he dealt specifically with cases in the Administrative Court. He identified three different scenarios. The first scenario is a case where the claimant has been wholly successful whether following a contested hearing or pursuant to a settlement. The second scenario is a case where the claimant has only succeeded in part following a contested hearing or pursuant to a settlement. The third scenario is a case where there has been some compromise which does not actually reflect the claimant’s claims.
  1. At paragraph 63 Lord Neuberger gave the following guidance in respect of the third scenario:

“In case (iii), the court is often unable to gauge whether there is a successful party in any respect and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.”

 

[This is a pain in the neck decision, since now when you settle a JR, you have to have an argument about who would have won, if you’d fought the whole thing, which is nearly as cumbersome as just fighting the whole thing] 

The Claimant argued that effectively, having settled the case and obtained his desired outcome, the original Judge ought to have determined that he had succeeded or would have succeeded had the case been litigated, and that costs should have followed.

 

The Court of Appeal disagreed , and you will see from my underlining, that they considered that the reason for the favourable settlement was the intervention of a third party – the immigration authority reversing their decision – a deus ex machina, and where that was the cause of the favourable settlement, one could not determine that the Local Authority were to blame.

 

  1. The second ground of appeal is that when one looks at all the factors which ought to have been taken into account, the judge should have been driven to the conclusion that the defendant should pay the claimants’ costs. The factors upon which the claimants rely are the following:

i) The claimants achieved the substantive benefit which they were seeking, namely long term housing and welfare support.

ii) The claimants achieved an immediate benefit, namely interim relief, which they could not have achieved without litigation.

iii) The claimants complied with the pre-action protocol and sent appropriate letters to the council before commencing proceedings.

iv) The conduct of the council was unreasonable. It resisted the claimants’ claim at every stage. It brushed aside the letters from the claimants’ solicitors. It did not provide interim accommodation for the claimants until it was ordered to do so.

v) The claimants’ case was strong. If the litigation had gone to trial, it is very likely that they would have won.

  1. Let me deal with those factors in the order set out above. As to the first factor, it is undoubtedly correct that the claimants have achieved their ultimate objective, namely long term housing and welfare benefits. On the other hand they have achieved that objective not because of any court order or concession by the council. The claimants have achieved that objective because of the Secretary of State’s decision to grant exceptional leave to remain. As Moore-Bick LJ observed in argument, this came as a deus ex machina. In my view the favourable intervention by a third party not involved in the litigation cannot be a reason to order the defendant to pay the claimants’ costs.
  1. I turn now to the second factor. The claimants applied for interim relief. The council opposed the application. The court granted interim relief. If the claimants had applied on 10th December 2010 for the costs of the interim relief application, Judge Waksman may have ordered the council to pay those costs. Alternatively, he may have ordered that the claimants’ cost of the application be costs in the cause. In the event, however, with the agreement of both parties Judge Waksman reserved the costs of the interim relief application, without any discussion of the basis on which costs were reserved.
  1. Since the underlying dispute between the parties never came to trial, I do not see any basis upon which Judge Stewart on 12th April 2012 could have ordered that the costs reserved by Judge Waksman on 10th December 2010 be paid by the council. Indeed in their lengthy written submissions on costs dated 30th March 2012 the claimants did not ask for an order that they be awarded the reserved costs of the interim application. I am therefore quite satisfied that Judge Stewart cannot be criticised for failing to make any separate and specific order in respect of the reserved costs.
  1. Mr. Wise relies upon the claimants’ success in obtaining interim relief as one of the reasons why Judge Stewart should have awarded to the claimants the entire costs of the action. He points out that the claimants got what they wanted in the teeth of the council’s opposition.
  1. The difficulty with this argument is that Judge Waksman was not adjudicating upon the substantive dispute between the parties. He began his judgment by saying that for the purpose of the current application the claimants had “a fairly modest task”. They only had to show their case was “prima facie arguable”. He did not even decide whether the claimants’ case was strong enough to merit the grant of permission to proceed. He simply made an order for interim relief to protect the claimants’ position until there could be a “rolled up” hearing.
  1. In my view, the fact that the claimants obtained interim relief does not mean that they were successful in the action. It is not a reason for awarding to the claimants the costs of the action.
  1. I turn now to the third factor. The claimants are to be commended for complying with the pre-action protocol. If following the commencement of proceedings the council had conceded the relief sought without admitting liability, they would have had difficulty in resisting an order for costs. The present case, however, is different. There has been no substantive decision by the court and no concession by the council. In these circumstances the fact that the claimants complied with the protocol is not a reason for awarding to them the costs of the action.
  1. I turn next to the fourth factor, the conduct of the council. The council, like the claimants, have been consistent. They have carried out assessments as required by 1990 Act. They concluded that they were not obliged to provide accommodation for the claimants pursuant to section 21 of the 1948 Act. This was the council’s position both before and after the issue of proceedings. Whether the council were right in their assessment of the position is a matter which has not been judicially determined. In my view, the council’s conduct in this case is not such as to attract an adverse costs order.
  1. I come finally to the fifth factor, the strength of the claimants’ underlying case. We have heard submissions from Mr. Wise as to why the claimants would probably have won. We have heard submissions from Mr. Howell as to why the claimants’ case was unfounded and they would probably have lost.
  1. It is not the function of this court on a costs appeal to give a substantive decision about litigation which never came to trial. Suffice it to say that both Mr. Wise and Mr. Howell put forward formidable arguments.
  1. For present purposes, it is necessary to focus on the material which was placed before Judge Stewart in April 2012. This comprised the parties’ written submission on costs and the court file. The court file would have included the pleadings and the evidence previously lodged. On reading and re-reading this material, I am not surprised that Judge Stewart was uncertain as to who would have won if the action had come to trial. I find myself in a similar state of uncertainty. In my view, it cannot possibly be said that the judge’s conclusion in this regard was either wrong or perverse.
  1. On reviewing all the circumstances of this case, I do not believe that the judge’s costs order can be faulted. The judge made no error of law or error of principle in the exercise of his discretion under rule 44.3 which would warrant intervention by this court

 

 

I know, this rambled about a bit *, but come on, you never thought you’d get Jack Bauer, volcanoes, Rocket Man, Greek theatre and parakeets in a law article on costs orders in judicial reviews, did you?

 

[* a lot ]

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As clear as a bell (if the bell were made out of mud)

The High Court helps out yet again, on ordinary residence issues, between Local Authorities, with head-scratching results. I think I finally get it, though it took three reads of the judgment.  In the words of Bertie Wooster,  “the slight throbbing about the temples told me that this discussion had reached saturation point.”

 

Suesspicious Minds accepts no liability for any such throbbing about the temples in the reader who attempts this judgment. 

This happened in the case of  Cornwall Council v Secretary of State for Health and others 2012

 

http://www.bailii.org/ew/cases/EWHC/Admin/2012/3739.html

 

This time, it relates to an adult with profound difficulties, who was owed duties by the State under the National Assistance Act 1948 to provide him with accommodation and services to meet those complex needs. The issue was, which precise bit of the State, and more importantly, which local authorities local taxpayers were about to shell out a huge wedge of cash on a person who had very little whatsoever to do with them.

 

The duty of course, is owed by that Local Authority in which the person is ordinarily resident, but in adult cases, that test of ordinary residence comes with a settled intention on the person’s part to live or settle there.  Where the person lacks capacity to form such intention, problems arise.

 

The various local authorities involved went to the Secretary of State for a determination, under section 32 (3) of the National Assistance Act 1948.

 

The Secretary of State looked at the case, and determined that this adult, who was not physically living in Cornwall,  was not accommodated in Cornwall, had no home in Cornwall and visited his parents in Cornwall two or three times per year, was the responsibility of Cornwall. 

 

Unsurprisingly, Cornwall didn’t like that much, and challenged it by way of judicial review.  It does seem manifestly crackers that a council’s taxpayers can be obliged to fork out upkeep for an adult who has never lived in their area, is never going to live in their area and whose sole connection with it is that his parents live there.

 

Cornwall  felt, that Wiltshire, who had accommodated this adult in 1991, when he and his parents had been living in Wiltshire, and had been looking after him ever since, were the authority who had ordinary residence.  From 1991 to 2004, he had been living with foster parents in Wiltshire; but then when he became an adult was provided with residential care in a third local authority’s area, South Gloucestershire. By that time, the adults parents had moved to Cornwall.

 

Cornwall, Wilshire, South Gloucestershire and Somerset (who, I think) were the local authority whose area this adult might be moving to in the future, had different ideas about who was the local authority responsible for providing care for this adult for the remainder of his days.  Though I suspect they all expressed it in broadly the same way “Wherever this person is ordinarily resident, it isn’t in my area”

 

 

I am afraid that the discussion within the judgment is eye-wateringly complex, but shakes down to this, at its heart, deriving from R v Waltham Forest LBC, ex p. Vale, 25 February 1985.

 

Taylor J set out two approaches, which are referred to as “test 1” and “test 2” in the Departmental Guidance. “Test 1” applies where the person is so severely handicapped as to be totally dependent upon a parent or guardian. Taylor J stated that such a person (in that case it was a 28 year old woman) is in the same position as a small child and her ordinary residence is that of her parents or guardian “because that is her base”. The second approach, “test 2” considers the question as if the person is of normal mental capacity, taking account of all the facts of the person’s case, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person himself or herself to have adopted the residence voluntarily

 

 

So, if the person has capacity, one looks, in the traditional Shah sense, of whether they have made a settled intention to live somewhere (even if that is not where they are physically living), and it would not have been Cornwall.

 

But, where they don’t, even though they are an adult, the Court treats them as a small child, and ordinary residence is where the parent of that person lives.

 

(Even if the adult were 50 and the parents were 80, one assumes)

 

Using my traditional loophole lawyer mind, I’m troubled as to how the Court resolve the issue of ordinary residence here where an adult’s parents are deceased, or live separately to one another in two different local authorities.

 

 

 

For the purposes of the case, the important arguments were in the fourth ground for JR, that Vale was now overtaken by subsequent decisions and the Mental Capacity Act, and that it was no longer the right test for deciding cases of this kind.  And that physical presence, rather than the physical location of the parents of an adult with capacity issues, was a more important factor in determining ordinary residence.

 

If you don’t want to slog to the end of this very law-heavy paragraph, and I honestly could not blame you – the upshot is that the High Court think the Secretary of State is right, Vale remains good law, Cornwall got well and truly hosed.   The underlined passage is probably why.

 

 

 

  1. iv) Ground 4:
  1. I turn to ground 4, the challenge to the approach in Vale’s case based on the submissions that there is a conflict between the tests in that case and those set out by the House of Lords in Shah’s case and in Mohammed v Hammersmith and Fulham LBC and that the approach has been overtaken by the approach to mental incapacity in the Mental Health Act 2005. In his reply, Mr Lock also submitted that Vale’s case is not authority for the proposition that, after thirteen years first with foster parents and then in two care homes, PH’s “ordinary residence” at the relevant time was that of his parents and follows their ordinary residence because they continue to take an interest in his welfare.
  1. The starting point in considering Mr Lock’s submissions is the acknowledgment by Lord Scarman in Shah’s case (see [1983] 2 AC at 343G-H) that the statutory framework or the legal context in which the words “ordinary residence” are used may require a different meaning to that in his “canonical definition”. The context before the court in that case was entitlement to a mandatory grant for fees and maintenance for students pursuing a course of study leading to a first degree or comparable course of further education. To be so entitled, they had to be “ordinarily resident” in the United Kingdom throughout the three years preceding the first year of the course. The key concepts in Lord Scarman’s definition (set out at [6]) are that the residence must be “voluntarily” adopted and that it must be for “settled purposes”. Lord Scarman stated that these are the two ways in which the mind of the individual concerned is important in determining ordinary residence: see [1983] AC at 344. As Mr Harrop-Griffiths observed, in the light of the facts of Shah’s case, it was hardly surprising that Lord Scarman did not seek to explain how the test he stated could, if necessary, be adapted in the case of an incapacitated person. What is clear, however, is that a test which accords a central role to the intention of the person whose “ordinary residence” is to be determined cannot be applied without adaptation when considering the position of a person who does not have the capacity to decide where to live.
  1. The other case on which Mr Lock relied, Mohammed v Hammersmith and Fulham LBC was also not concerned with a person who lacked capacity. Moreover, it was not concerned with the term “ordinary residence” but with the term “normal residence” in sections 198, 199 and 202 of the Housing Act 1996. M was a homeless person who had lived as the guest of a friend in Hammersmith for two and a half months. After being reunited with his wife, the couple applied to the Hammersmith and Fulham Council for assistance with accommodation. In July 1998 the Council determined that neither the applicant nor his wife had any local connection with Hammersmith but, as the wife had a local connection with Ealing by reason of her several years of residence there, their application was referred to the local housing authority for Ealing.
  1. The question for the court was whether the Hammersmith and Fulham Council had erred in not taking into account the period spent by M when living in its area as the guest of his friend. It was held that it had. Interim accommodation within the area of the Council could constitute “normal residence” for the purpose of section 199(1)(a) and thus be evidence of a local connection. Lord Slynn of Hadley stated (at [17]) that where a person in fact has no “normal residence” at a particular time, the term is to be given the same meaning as “ordinarily resident” in Shah’s case, and (see ibid at [18]) that “the prima facie meaning of normal residence is a place where, at the relevant time, the person in fact resides”. He continued:

“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 must 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.”

  1. Mr Lock gains some support from Lord Slynn’s statement that the term “normal residence” is to be given the same meaning as “ordinarily residence”. But it is limited support. Apart from the differences of statutory context and terminology, Lord Slynn stated the term “normal residence” is only to be given the same meaning as “ordinarily residence” where, at the relevant time, the person in fact has no “normal residence”. The test is thus a surrogate because the person in fact had no “normal residence”. It is, indeed, a surrogate which accorded an important role to intention. Lord Slynn’s reference to the need for the person to “voluntarily accept” the place where he eats and sleeps, suggests that physical presence was used as an indication of what the person voluntarily wanted and it was that which could constitute a local link. Moreover, the factual circumstances included a number of features pointing to a strong attraction to the borough in which M was physically present. They included the presence of relatives in the borough and the need for medical treatment which was being provided by a hospital in the borough. It would appear that physical presence is insufficient in itself and that what is required is an underlying attachment.
  1. Mr Lock also relied on R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 and R (Sunderland CC) v South Tyneside C [2012] EWCA Civ 1232, two cases about the meaning of the term “resident” in section 117 of the Mental Health Act 1983. The Hertfordshire case is of limited assistance because there was no evidence that JM lacked capacity: see [2010] EWHC 562 (Admin) per Mitting J at [5] and [8] and [2011] EWCA Civ 77 per Carnwath LJ at [8]. In the Sunderland case Lloyd LJ stated (at [26]) that, in understanding the meaning of the term “resident” in the 1983 Act, he did not find it helpful to consider cases in which “ordinary residence” in other legislation has been construed. Similarly, I do not find the cases on the term “resident” of assistance in construing the term “ordinary residence” in the 1948 Act.
  1. I therefore turn to Vale‘s case. It was the first case in which the determination of the “ordinary residence” of an incapacitated person fell for decision. For the reasons I have given, I do not consider that the approaches set out by Taylor J in it are “inconsistent” with the approach in either Shah‘s case or Mohammed v Hammersmith and Fulham LBC. Is it, however, outdated or flawed in some other way?
  1. On examination, the facts and the judgment of Taylor J show that what are referred to as “Test 1” and “Test 2” in the Departmental Guidance are not rules of law but two approaches to the circumstances of a particular case. Both involve questions of fact and degree, although Test 2 may be thought to do so to a greater degree.
  1. Vale‘s case concerned Judith, a 28 year old woman who lacked the mental capacity to decide where to live. She was born in London but her parents moved to Dublin in 1961, when she was five. She was placed in residential care in the Republic of Ireland. In 1978, when she was 22, her parents moved back to England with their other children to an address in the area of Waltham Forest. Judith remained at a home for the mentally handicapped in Ireland, but visited her parents two or three times a year. In May 1984, she returned to England to her parents’ address. In anticipation of her return her parents, who wanted to place Judith in a suitable home, sought assistance from Waltham Forest LBC. After her arrival, a placement was found at a home in Stoke Poges, in Buckinghamshire. The DHSS agreed to meet the major part of the cost. Waltham Forest refused to make up the shortfall on the ground that Judith had not been a resident in the borough, but had transferred from a residential placement in Ireland where her need for residential accommodation arose.
  1. After considering Shah‘s case, Taylor J stated that, where a person’s learning difficulties were so severe as to render them totally dependent on a parent or guardian “the concept of her having an independent ordinary residence of her own which she has adopted voluntarily and for which she has a settled purpose does not arise”. He identified two alternative approaches to the determination of where such a person is ordinarily resident. Where a person is so severely handicapped as to be totally dependent upon a parent or guardian, he stated that she is in the same position as a small child and her ordinary residence is that of her parents or guardian “because that is her base”. This (see [24(8) – (9)] is referred to as Test 1 in the Departmental Guidance.
  1. Taylor J stated that the alternative approach (which the Departmental Guidance refers to as Test 2) is to consider the question as if the person is of normal mental capacity. He considered where the person was in fact residing and the purpose of such residence. He stated that Judith was residing “with her parents for the settled purpose of being looked after and having her affairs managed as part of the regular order of her life for the time being” and “until it was possible to obtain funding for her to go” to the home in Stoke Poges. He stated that there was no other address at which she could have been ordinarily resident, that Shah’s case required future intent to be left out of account, and that Judith could not be regarded as a squatter in her parents’ home. The Departmental Guidance (paragraph 34, summarised at [24(10)]) rationalised what he had said about this second alternative thus:- “all the facts of a person’s case should be considered, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person themselves to have adopted the residence voluntarily”.
  1. Vale‘s case was decided two months after the decision of the House of Lords in Shah‘s case. It was the first case in which the approach to the determination of the “ordinary residence” of an incapacitated person fell for decision. It was applied by Potts J in R v Redbridge LBC, ex p. East Sussex CC [1993] COD 256, and considered without disapproval by Charles J in R (Greenwich LBC) v Secretary of State [2006] EWHC 2576 (Admin) and the Court of Appeal in R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 at [41] (Carnwath LJ). Central government and local authorities have placed significant reliance on it in formulating guidance.
  1. In these circumstances there needs to be a good reason to replace it and a satisfactory alternative approach. Cornwall‘s case is that primacy should be given to physical presence. It is, however, important not to accord insufficient weight to the fact that Parliament chose the concept of “ordinary residence” as opposed to “residence”, to the difference between those concepts, and to the other factors which are of relevance in determining “ordinary residence”.
  1. It is clear from the cases, including Shah’s case and Mohammed v Hammersmith and Fulham LBC, that physical presence is not sufficient to constitute “ordinary residence” but the implication of Mr Lock’s submissions is that it is a necessary requirement. He relied on Holman J’s statement in North Yorkshire CC v Wiltshire CC [1999] Fam. 323 at 333 that it is “wholly artificial to regard a child as continuing to be ordinarily resident in an area in which neither he nor his family continues actually to reside and to which neither expects to return”. In PH’s case that has been the position since May 2012, but it was not the position in December 2004. At that time PH’s parents lived in Cornwall, there was a physical presence by him in the county during his visits. Indeed, as it happened, PH was physically present in Cornwall on the day before his eighteenth birthday, although I disregard that fortuitous circumstance as of no significance to the determination of the question before me. However, his parents were much involved in the arrangements for his care and took an active and continuing interest in him, and that is a relevant factor.
  1. At this stage it is instructive to consider the two first instance cases in which Vale’s case has been considered. The first is R v Redbridge LBC, ex p. East Sussex CC , 21 December 1992, of which I only have the summary of the judgment in the Crown Office Digest: [1993] COD 168. The father of handicapped autistic twins, who lived in Haringey, placed them at a residential school in East Sussex. Four years later in 1986 the twins’ parents moved to the area of Redbridge LBC and sought assistance from the council. In 1987 Redbridge informed the father that, pending a statutory assessment, it would accept responsibility for the education of the twins, then aged fifteen. In January 1989 the residential school informed Redbridge that it would be closing on 17 March 1989.On 2 March Redbridge learned that the twins’ parents had sold their house in Redbridge and left this country to live in Nigeria in December 1988, and, on 10 March, Redbridge informed East Sussex of the impending closure of the school, the parents’ return to Nigeria, and that it considered that the statutory responsibility for the twins lay on East Sussex. As the twins were in urgent need of assistance and were in its area, East Sussex provided emergency respite care under the National Health Act 1977, but instituted judicial review proceedings contending that the duty to provide for the twins under the 1948 Act lay on Redbridge. There appears to have been no consideration of responsibility under the Children Act 1989.
  1. Potts J held that the duty under the 1948 Act fell on East Sussex. The summary in the Crown Office Digest states that he held that the twins were ordinarily resident in Redbridge until December 1988 because they were so mentally handicapped as to be totally dependent on their parents, and because Redbridge was their base. However, after their parents left and the family house was sold, they had no settled residence, were physically present in East Sussex, and were in urgent need of care. East Sussex was (see [23]) the “local authority of the moment” and, as such, the duty fell on it. The summary does not state whether the twins had ever visited their parents in Redbridge before the parents returned to Nigeria. It refers to Redbridge seeking to contact the parents in December 1988 about funding a holiday placement, and to the fact that the parents left for Nigeria without informing Redbridge. These factors suggest that there may have been only little contact between the parents and the twins, even in the school holidays, before that time. Nevertheless, their parents’ house in Redbridge was stated to be their base.
  1. The second case is R (Greenwich LBC) v Secretary of State[2006] EWHC 2576 (Admin). D, an elderly woman who lived in the area of Bexley LBC moved into a care home in Bexley. Her means were such that she and her family were responsible for the costs of her care, and her home was sold to provide funding for this. After about a year, it was decided that it was no longer appropriate for D to remain at that home because she needed to be in a EMI nursing home or in NHS care. She was placed in a nursing home in the area of Greenwich LBC. Four weeks and five days later, on 29 June 2002 her capital had fallen to the point that responsibility for her care fell on the appropriate local authority. There was a dispute between Greenwich and Bexley and they referred the matter to the Secretary of State. He determined that, although the move to the home in Greenwich was facilitated by Bexley, it was D’s family and not Bexley who placed her there. The question was where she was ordinarily resident on the date when her available capital fell below the relevant financial cap. The Secretary of State decided that it was Greenwich. After considering the authorities, including Vale‘s case, Charles J stated (at [72]):

“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 the point emphasised before me and appears clearly from Shah. Although ordinary 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. …”

  1. Charles J thus regarded “ordinary residence” as involving questions of fact and degree, and factors such as time, intention and continuity, each of which were to be given a different weight according to the context: see [73]. He also stated (see [74]) that the fact that the individual in that case did not have an existing right to reside at a place in Bexley on the relevant date is a significant factor to be taken into account, but “is not determinative of the issue”. Mr Lock’s submissions in effect suggested that PH could not be ordinarily resident in Cornwall because he did not have the “right” to reside at his natural parents’ home. Although certain passages in the Secretary of State’s determination in the Greenwich case might be understood to suggest that the Secretary of State regarded the absence of a place available in Bexley as determinative, Charles J stated (see [85]) that, on its true interpretation, the determination stated that, given all the factors that had to be taken into account, the key factor was that the individual did not in fact have anywhere to live in Bexley any longer, and was actually living in Greenwich, and that the factors that fell for consideration did not outweigh the force to be given to those points in determining her ordinary residence.
  1. Drawing the threads together, “ordinary residence” is a question of fact and degree, and if the Secretary of State gets the law right, the determination of a person’s ordinary residence is for the Secretary of State, subject only to Wednesbury unreasonableness. In the present case PH’s connections with Cornwall differed from Judith’s connections with Waltham Forest in Vale’s case. In one sense PH’s connections were more transitory because Judith had come to stay with her parents in Waltham Forest until appropriate arrangements were made for her whereas by December 2004 arrangements had been made for PH to be placed in a home in Somerset. But, in North Yorkshire CC v Wiltshire CC [1999] Fam. 323 at 334 Holman J stated that “the court is entitled to take into account matters other than where [the person himself or] herself was living during the specified period, and Potts J in R v Redbridge LBC, ex p. East Sussex CC .did not appear to have placed any weight on whether there was a physical presence by the twins in Redbridge during the period in which the court found they were ordinarily resident there.
  1. In deciding whether PH’s base was at the home of his natural parents, the Secretary of State applied the Vale Test 1 in a fact-sensitive way. Although not determinative of the legality of his decision, he did so in a similar way to that presented in “scenario 2” in paragraph 158 of the Departmental Guidance: which is summarised in the Appendix to this judgment.
  1. The Secretary of State examined (see determination, paragraphs 23-24, set out at [46]) whether there was a real relationship between PH and his natural parents and whether they were in fact making relevant decisions. He was entitled to take account of that and (see determination, paragraph 25) of the “entirety of the relationship between [PH] and his parents”. As part of that, he was also entitled to take account of the time spent by PH with them in Cornwall.
  1. It is also clear that the Secretary of State took account of the approach in section 4 of the Mental Capacity Act 2005. In considering the approach of PH’s family, he concluded that they viewed contact with PH in terms of what was in his best interests.
  1. The process of determining that PH was ordinarily resident in Cornwall may appear artificial. There would, however, have been a similar artificiality in determining that he was ordinarily resident in any of the other counties under consideration. The Secretary of State gave reasons for concluding that PH could not be considered ordinarily resident in Wiltshire at the relevant time: see paragraph 22 of the determination, which is set out at [46] above. Those reasons and that approach are in line and consistent with the decision of the Court of Appeal in Re D (a child) (care order: designated local authority) [2012] EWCA Civ 627.
  1. In D‘s case it was held that the “disregard” principle in section 105(6) of the 1989 Act did not apply when the ordinary residence of a sixteen year old mother had to be determined for the purpose of determining the ordinary residence of her baby. Elias LJ stated:

“[the mother] is treated as though she has two hats; she is a mother whose ordinary residence must be determined by common law principles when that concept is relevant for the purpose of determining her child’s ordinary residence for any purpose under the 1989 Act; but she is a child whose ordinary residence is modified by section 105(6) when it comes to determining her own place of ordinary residence for any purpose under that Act”. (at [45]).

The reasoning summarised in paragraph 22 of the Secretary of State’s determination represents the application of those common law principles.

  1. As to South Gloucestershire, for the reasons I have given in [66], by the relevant date it was clear that PH was only in South Gloucestershire on a very temporary basis and the settled intention required to establish “ordinary residence” could not be imputed to him. Finally, as to Somerset, although it was planned that he would move there shortly afterwards, at the relevant date he had never lived in that county. Shah‘s case required future intent to be left out of account.
  1. For these reasons, I have concluded that the Secretary of State’s determination that PH had, as his “base” his parents’ home as at the date of his eighteenth birthday, and hence was ordinarily resident in Cornwall was one that was properly open to him. Accordingly this application is dismissed.

 

White papering over the cracks?

 

A very brief look at the draft Care and Support Bill.

 

 

There’s a consultation going on (isn’t there always?)  this time on Safeguarding for adults, and whether some new powers should be introduced.

Firstly, it recommends removing s47 of the 1948 National Assistance Act, which was the power to remove someone from their home. They say, and I tend to agree, that  “Enacted in a very different era, its language and intentions are not compatible with our current approach to community-based support that promotes and protects people’s human rights “

 

I completely agree that it is a dangling remnant of a bygone era when doctors always knew best, and I’m not sure it is deeply compatible with Human Rights and probably should be scrubbed from the statute books.

 

Having said that, I’m not sure that s47 is an active problem – I can recall having only even looked at it as a possibility (and then discounting it) in one case.  I’ve never heard of anyone ever applying for such an order.   [It is interesting, for example, that on the bible on community care law  – Luke Clements and Pauline Thompson’s  “Community Care and the Law”, the section on s47 removal powers is just under a page long and cites no case law about it at all. ]

 

In case you want to know, here is verse, and also chapter

 

47 Removal to suitable premises of persons in need of care and attention. E+W

(1)The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who—

(a)are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and

(b)are unable to devote to themselves, and are not receiving from other persons, proper care and attention.

(2)If the medical officer of health certifies in writing to the appropriate authority that he is satisfied after thorough inquiry and consideration that in the interests of any such person as aforesaid residing in the area of the authority, or for preventing injury to the health of, or serious nuisance to, other persons, it is necessary to remove any such person as aforesaid from the premises in which he is residing, the appropriate authority may apply to a court of summary jurisdiction having jurisdiction in the place where the premises are situated for an order the next following subsection.

(3)On any such application the court may, if satisfied on oral evidence of the allegations in the certificate, and that it is expedient so to do, order the removal of the person to whom the application relates, by such officer of the appropriate authority as may be specified in the order, to a suitable hospital or other place in, or within convenient distance of, the area of the appropriate authority, and his detention 5and maintenance therein:

Provided that the court shall not order the removal of a person to any premises, unless either the person managing the premises has been heard in the proceedings or seven clear days’ notice has been given to him of the intended application and of the time and place at which it is proposed to be made.

(4)An order under the last foregoing subsection may be made so as to authorise a person’s detention for any period not exceeding three months, and the court may from time to time by order extend that period for such further period, not exceeding three months, as the court may determine.

 

 

So, I would agree that s47 be terminated with extreme prejudice, but it isn’t going to transform the world we live in.

 

The other big proposal is that there should be statutory principles about adult social care and safeguarding  (along the lines of the principles enshrined in the Children Act) , and to put it right at the beginning  – s1 the general duty of a local authority in exercising any powers under this Act with regard to an adult is to promote that adult’s well-being.

 

Again, I see no problem with that.

 

Then to give clear legal principles as to entitlement to support, including entitlement for carers and the right to insist on this being made by direct payments.   I remain sceptical that direct payments, or personalisation, is quite the magic wand that the Government believe it to be. I can see the concept that an individual should have the resources given to them to decide how they want to spend it on meeting their needs rather than having a paternalistic state decide, but I think in practice, it massively overlooks that adult social care tends to be given to the very most vulnerable members of society who may not be in quite the same position as a Local Authority bulk purchaser of services to achieve such good value for money. Nonetheless, direct payments and personalisation are the miracle cure, and thus we’re going to have them enshrined in legislation until such time as Government decides that passing the buck to vulnerable people to meet their own needs with a small amount of cash doesn’t really work.

 

 

This is a particularly interesting bit – clauses 31-33   – a person receiving a package of support will be entitled to the same package of support if they move to another area [at least until fresh assessments are done].  That is good for the person, certainly.

 

Very bad for the receiving local authority if the first LA realise that the person is planning a move and decides to offer them a ‘moon on a stick’ package of support which is Rolls Royce, knowing that they will only have to provide it for a week before the new LA gets lumbered with it for much longer.

 

It may well be a chance for festering scores to be settled between LA’s – it’s practically a statutory “griefing” mechanism.  [But maybe I am being too cynical, and neighbouring authorities will work together to achieve good outcomes for vulnerable adults moving between their authorities, just as they always endeavour to do now]

 

I do very much like the provision that where a person is placed in area B by Local Authority A, it will be Local Authority A who remain responsible for that person, and that will hopefully resolve a lot of inter-authority bickering.

 

 

There will be for the first time in statute, provisions about adult safeguarding, setting out the duty to carry out enquiries into suspected abuse, and there is discussion about whether the State should be able to apply for a warrant to gain access to a vulnerable person if it is believed they are being abused in order to investigate.

 

 

The consultation on that runs until 12th October, so if you have firm views about whether or not the State should have the ability to seek a warrant to enter the home of someone believed to be a vulnerable adult being abused, and the circumstances that would trigger such a warrant being granted, speak up quickly.

 

There are also interesting ‘smoothing’ provisions aimed at meeting the gap where a young person receives support and assistance from the LA under Children Act legislation until they reach 18, then get nothing at all whilst they wait for a community care assessment of their adult needs. The new proposals will ensure that the package of support they are getting as a child continue up until the community care assessment is done and a fresh package of support put in place.  I have to commend that, as being a gap that needed to be filled and a good proposal for filling it.  

 

All in all, I think this is a decent piece of draft legislation, and doesn’t contain anything that I consider to be outrageous or ill-conceived  (my personal anxieties about personalisation aside, that’s a direction we’ve been travelling in for a long while now)