Manchester City Council, R (on the application of) v St Helens Borough Council & Anor

Responsibility for community care services generally follows the service user’s ordinary residence. Where Secretary of State directions make section 29(1) of the National Assistance Act 1948 mandatory, the ordinarily resident authority owes the statutory duty; another authority’s voluntary provision under its power does not become a continuing public-law duty. Withdrawal remains subject to rationality, absence of abuse and legitimate expectation, with suitable transitional arrangements. A section 32(3) determination of ordinary residence can provide a rational basis for changing responsibility. Legitimate expectation requires a specific and focused assurance, not merely a history of funding. An appellate court should rarely interfere with a discretionary refusal to extend time absent an error of principle or a plainly wrong decision.

PE required an exceptionally expensive package of care. St Helens Borough Council had funded her care after she moved to Manchester, although she lived in accommodation chosen in her own name. Under section 32(3) of the National Assistance Act 1948, the Secretary of State determined that PE had been ordinarily resident in Manchester since April 2000. St Helens then decided to stop funding her care.

Manchester challenged that decision and sought judicial review. A deputy High Court judge and, after an oral hearing, Dobbs J refused permission; Dobbs J’s decision is reported at [2008] EWHC 3510 Admin. The claim had also been filed outside the three-month period. The central issues were whether St Helens had assumed a continuing public-law duty or created a legitimate expectation preventing withdrawal, and whether time should be extended.

1. Disposition. Sir Anthony May gave the leading judgment. Scott Baker LJ and Lloyd LJ agreed. The appeal was dismissed, the extension of time was refused, and permission to bring judicial review proceedings remained refused.
2. Statutory responsibility. The Secretary of State’s unchallenged determination under section 32(3) of the National Assistance Act 1948 identified Manchester as the authority responsible for PE’s care. Section 29(1), read with the Secretary of State’s directions, imposed a duty on the authority where the person was ordinarily resident and assessed as needing community care services. It conferred only a power to provide such services for a person ordinarily resident elsewhere.
3. Section 47(1) of the National Health Service and Community Care Act 1990 imposed an assessment duty whenever the authority had legal power to provide or arrange community care services. It did not itself create the underlying power or duty to provide services; those arose under the earlier statutory scheme. The Court relied on the distinction between power and duty identified in R v Berkshire CC ex parte P (1998) 1 CCLR 143 and explained the limited relevance of R v Kensington & Chelsea RLBC ex p Kujtim [1994] 4 All ELR 161.
4. The exercise of the power to provide services for a non-resident did not crystallise into a continuing public-law duty to maintain the same provision. Withdrawal was permissible subject to rationality, absence of abuse of power, legitimate expectation and appropriate transitional arrangements. A local authority could not use the power to dump difficult cases into another authority’s area, but no change of circumstances was required here. The ordinary-residence determination was an entirely rational basis for St Helens’ decision.
5. A substantive legitimate expectation required a specific, pressing and focused assurance directed to a particular individual or group. Prolonged funding, without such an assurance, was insufficient. The principles in R (Bhatt Murphy) & Others v The Independent Assessors [2008] EWCA Civ 755 applied.
6. On the procedural issue, the Court was reviewing Dobbs J’s discretionary decision. Her refusal to extend time involved no error of principle and was not plainly wrong. The delay lacked a good explanation, notwithstanding that the overrun was short and no prejudice had been identified.

• Court of Appeal (Civil Division): [2009] EWCA Civ 1348. Appeal dismissed and extension of time refused.
• Administrative Court: [2008] EWHC 3510 Admin. Dobbs J refused permission to bring judicial review proceedings and refused an extension of time.
• Administrative Court: A deputy High Court judge refused permission on 20 October 2008.