Buckinghamshire County Council, R (on the application of) v Kingston Upon Thames

A local authority assessing an individual under National Health Service & Community Care Act 1990 section 47 is not ordinarily under a common-law duty to notify or consult another authority whose finances may be affected. The statutory context, including express notification provisions, is a powerful reason for caution, although it does not conclusively exclude common-law fairness duties.

Fairness is concerned with protecting the interests of the person assessed. The authority’s failure to make any further inquiry into housing benefit was unreasonable where that benefit was crucial to the affordability of the proposed tenancy. Notification and consultation may nevertheless constitute good practice even where they are not legally required.

The Defendant had placed SL, a woman with epilepsy and learning difficulties, in residential accommodation in Buckinghamshire under section 21 of the National Assistance Act 1948. Following a care review, SL moved to a rented bungalow. The Defendant initially funded her care, but asserted that Buckinghamshire County Council had become responsible because SL was ordinarily resident there.

The Claimant sought judicial review, alleging failures to notify and consult it, irrationality concerning the affordability of the tenancy and housing benefit, failure to consider alternative statutory arrangements, and failure to consider SL’s understanding of the tenancy’s legal consequences. The court also considered the relevance of non-statutory ordinary-residence guidance.

1. The claim substantially failed. The Defendant was not under a legal duty to act fairly towards the Claimant during SL’s section 47 assessment or before deciding how her needs should be met.
2. The principles in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 applied. Fairness depends on all the circumstances, particularly the statutory context. Section 47 expressly required notification and invitations to assist in specified cases and authorised directions concerning the conduct of assessments. Those provisions were powerful indicators against implying a general duty to notify or consult another local authority, though they did not conclusively exclude common-law fairness duties.
3. The Claimant’s adverse financial consequences could be considered when deciding whether fairness arose, but they had reduced significance because the assessment had to focus on SL’s needs and interests. Neither authority could properly use the other authority’s financial consequences as a factor in determining SL’s needs.
4. The ordinary-residence guidance in Local Authority Circular LAC (93)7 was interpreted as applying to placements made under the National Assistance Act 1948, not to SL’s tenancy-based move. In any event, the non-statutory guidance was at least as relevant to good practice as to the existence of a common-law duty.
5. If a fairness duty had existed, it would have required prior notification and consultation, but not participation in the decision-making process. The consultation standard stated in R v Brent London Borough Council, ex parte Gunning and R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 would have applied. This discussion was obiter.
6. The Defendant acted unreasonably by making no inquiry after 5 May 2009 into whether housing benefit would be paid and, if so, in what amount. Housing benefit was crucial to the affordability and sustainability of the tenancy. At least confirmation from the local housing authority should have been sought.
7. The remaining complaints failed. It was not irrational not to consider section 26(3A) of the 1948 Act, which probably did not apply to the bungalow, nor not to consider accommodation nearer SL’s family. The Defendant had sufficiently informed itself about SL’s ability to understand the essential elements of the tenancy.

The parties were invited to make further submissions on relief arising from the specific finding concerning housing benefit.

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