London Borough of Greenwich, R (on the application of) v Secretary of State for Health & Anor

For residential accommodation under the National Assistance Act 1948, the deeming provision preserves the responsible authority where accommodation should have been provided under the Act, even if the required arrangements were unlawfully omitted. The relevant trigger is when the statutory duty arose, not when the need for funding became imminent.

Ordinary residence is a question of fact and degree. The decision maker must consider the context and relevant factors, including time, intention, continuity, voluntary adoption and settled purpose. Actual residence and the absence of accommodation elsewhere may be significant, but neither is automatically decisive. Judicial review examines whether the statutory decision maker applied the correct criteria and gave adequate reasons; where more than one lawful outcome remains possible, the court should remit rather than substitute its own decision.

Greenwich sought judicial review of a determination by the Secretary of State under section 32(3) of the National Assistance Act 1948 concerning responsibility for funding Mrs D’s residential care. Mrs D had previously been ordinarily resident in Bexley. Following deterioration in her condition, Bexley arranged her move to a nursing home just inside Greenwich. Her resources fell below the relevant threshold shortly afterwards.

The Secretary of State determined that the deeming provision in section 24(5) did not preserve Bexley’s responsibility and that Mrs D had ceased to be ordinarily resident there. The central issues were whether section 24(5) applied despite the absence of formal arrangements with the home, when the statutory duty arose, and whether the Secretary of State had applied the correct criteria in determining ordinary residence.

1. Application dismissed. The Secretary of State had applied the correct legal criteria and was entitled to conclude that Mrs D was ordinarily resident in Greenwich when the duty to provide accommodation arose.
2. Section 24(5) of the National Assistance Act 1948 applies where accommodation under Part III should have been provided but the responsible authority failed to make the necessary arrangements. The court should treat the arrangements as having been put in place for the purpose of determining responsibility, although this does not create a retrospective contract.
3. The relevant trigger was 28 or 29 June 2002, when Mrs D ceased to be self-funding and the statutory duty arose. The argument that the accommodation should be treated as provided earlier because the funding need was imminent was rejected. The statutory language and the financial threshold provided a clear and workable line.
4. Ordinary residence is an issue of fact and degree. The decision maker must apply the natural and ordinary meaning of the words in their statutory context. Relevant considerations may include actual residence, voluntary adoption, settled purpose, time, intention, continuity, the preservation of an existing statutory duty, and whether accommodation remains available elsewhere. A person may be ordinarily resident in more than one place, and physical presence is not necessarily decisive.
5. The Secretary of State’s determination was to be read generously. Although the reasoning and later explanations could have been clearer, the determination showed that the Secretary of State had considered the relevant guidance and authorities and had treated Mrs D’s actual residence in Greenwich and the absence of available accommodation in Bexley as important factors within the overall assessment, rather than as automatically conclusive.
6. The parties’ failure to communicate caused avoidable difficulty and was inconsistent with the statutory guidance, which required care not to be delayed by disputes about responsibility. That failure did not alter the legal allocation of responsibility. Costs were to be paid by Greenwich in the amount of one quarter of the total costs of the Secretary of State and Bexley, subject to the stated liberty to make written submissions.

First-instance judicial review. No prior appellate decision is stated in the judgment.