Buckinghamshire County Council v Royal Borough of Kingston Upon Thames

In a statutory community-care assessment, the welfare and needs of the service user remain the centre of decision-making. A host county council that may become financially responsible for services has no common-law right to be consulted merely because the placement will transfer responsibility to it. Where the National Health Service & Community Care Act 1990 specifies notification and participation for primary care and housing authorities, and no direction requires consultation with host county councils, the court should not imply an enforceable duty. Administrative co-operation and information-sharing remain desirable, but any wider enforceable duty should be created by legislation or clear directions. The statutory financial allocation between authorities is not itself a relevant placement factor.

Buckinghamshire County Council appealed against Wyn Williams J’s refusal to declare unlawful Kingston’s decision to move SL from residential accommodation provided by the National Society for Epilepsy into supported living in Buckinghamshire. SL had epilepsy and learning difficulties. If the move was lawful, Buckinghamshire would become responsible for her community-care services and associated expenditure.

Buckinghamshire argued that Kingston owed it a common-law duty of fairness requiring consultation before the placement decision. Kingston and SL resisted. The central issue was whether such a duty arose despite the express arrangements in section 47 of the National Health Service & Community Care Act 1990 for involving primary care, health and housing authorities.

The appeal was dismissed unanimously. Pill LJ delivered the principal judgment. Patten LJ agreed and added observations on the statutory scheme. Munby LJ agreed with both judgments.

1. Statutory focus. The assessment and placement decision under section 47 of the National Health Service & Community Care Act 1990 was governed by SL’s needs and best interests. The fact that financial responsibility might pass to Buckinghamshire was incidental and could not be a factor in Kingston’s placement decision.
2. No implied consultation duty. Kingston was performing a statutory duty owed to SL, not acting in a judicial or quasi-judicial capacity towards Buckinghamshire. Buckinghamshire’s role as a potential payer was essentially incidental. The statutory scheme gave no express status to a host county council, and no direction under section 47(4) required its consultation.
3. Section 47(3). The notification and invitation to assist under section 47(3) concerned primary care, health and housing authorities with their own statutory responsibilities towards the service user. It was not a general right to object to a care plan or a proper consultation duty in favour of another authority. A defect in that process could, at most, provide a ground of challenge for the service user.
4. Contextual fairness. Whether additional consultation is required depends on the statutory context, the nature and purpose of the decision, the person to whom the duty is owed, the rights affected and the practical consequences. Express statutory consultation provisions are a powerful starting point against implying a wider duty, although they are not automatically conclusive. Here, nothing in the context required consultation with Buckinghamshire.
5. Co-operation and the exchange of local information were desirable, but good administration did not confer enforceable legal status on Buckinghamshire. Any such duty would need to be created by statute or clear directions from the Secretary of State. The court distinguished the contexts considered in Litchfield Securities, Hillingdon and Easyjet, while applying their general contextual approach. Pill LJ added that a case in which placement decisions were financially motivated might raise different considerations; that observation was hypothetical.

The appeal was therefore dismissed.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 457: appeal dismissed.
• Queen’s Bench Division, Administrative Court — Wyn Williams J refused the application for declaratory relief in [2010] EWHC 1703 (Admin); permission to appeal was granted.