The Barking Ordinary Residence decision
R (Barking and Dagenham LBC) v. Secretary of State for Health (2017) is an esoteric but important Ordinary Residence decision.
The case concerned a 24 years old person (HR) with autism and a moderate learning disability who grew up with his parents in the London Borough of Redbridge. He required help with most aspects of personal care and everyday living activities including communicating his needs.
Until 2012 he lived with his parents in Redbridge and received extensive domiciliary and community based support together with 28 days respite care each year at a property in Barking – provided under National Assistance Act (NAA) 1948 s29 (a ‘supported living’ arrangement). In August 2012 when in the respite placement his parents stated they did not wish HR to return and HR was also content to remain in Barking. In due course this was formalised with the parents signing a tenancy agreement on HR’s behalf and his rent being paid by way of housing benefit from Barking.
The question arose as to HR’s ordinary residence under the 1948 Act – and by extension, the Care Act 2014. Barking argued – in essence – that HR’s needs were so extensive that in reality they could only be provided in residential accommodation (under s21 of the 1948 Act) and as a consequence the ‘deeming provision’ (in NAA 1948 s24(5)) was engaged. If this was correct, then HR would continue to be ‘ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him’ (ie Redbridge).
The Department of Health rejected this argument and its determination was upheld by the High Court: HR was ordinarily resident (and therefore the responsibility of) Barking and Dagenham LBC.
Residential accommodation under the 1948 Act was a service of ‘last resort’: a phrasing that finds echo in the ordinary residence provisions in the Care Act 2014 s39(1) which require that the care needs ‘can be met only’ in specified accommodation. The Statutory Guidance to the 2014 Act (para 19.51) advises that this will be the case where a ‘local authority has made this decision following an assessment and a care and support planning process involving the person’ and that authorities are ‘not required to demonstrate that needs cannot be met by any other type of support’.
This approach was adopted by the court (albeit in the context of the 1948 Act) holding that the decision on whether a person’s needs can only be met by the provision of specified accommodation ‘is best left to the judgement of local authorities and should not usually require the intervention of the Court’.
A further argument advanced by Barking and Dagenham LBC was also rejected. This adopted comments made by the Supreme Court in R (Cornwall Council) v Secretary of State for Health that ‘an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it’ (para 54 of the judgment). In the High Court’s opinion, this was not a local authority deciding to export someone to another authority but implementing a decision by ‘HR, followed by his parents, expressing a clear wish for HR to move out of the family home to the Barking accommodation’ (para 45).
The Court noted that had the transfer occurred after April 2015 the effect of the Care Act 2014 changes (see Care Act 2014 overview guide p.45) would most probably have meant that Redbridge would have remained responsible for HRs care.