Neath and Port Talbot Council v Secretary of State for Health

For ordinary-residence disputes under Part 3 of the National Assistance Act 1948, residence is determined by applying the ordinary and natural meaning of the words in their statutory context. The inquiry is one of fact and degree, in which time, intention, continuity and other relevant circumstances may carry different weight.

Where residential accommodation is provided under section 21, section 24(5) deems ordinary residence to continue in the area where the person was ordinarily resident immediately before accommodation was first provided. The deeming provision is not displaced merely by the person’s intention, family ties or the identity of the authority arranging care.

The Secretary of State may determine the dispute on the material supplied by the authorities and may treat an earlier determination as standing where it has not been challenged or reopened.

SM suffered severe brain injury and required continuous care. Worcestershire initially funded his NHS care and arranged placements outside its area, including a nursing home in Neath. A dispute later arose between Neath and Worcestershire about which authority was responsible under Part 3 of the National Assistance Act 1948.

The Secretary of State’s first determination decided that SM was ordinarily resident in Neath between January and August 2009 and stated that section 24(5) would continue that position after his return to Worcestershire, although the period after August 2009 had not formally been referred. Neath did not challenge that determination.

After Worcestershire referred the later period, the Secretary of State’s second determination treated the first determination as standing and applied the deeming provision. Neath sought judicial review, arguing that the first determination could not be relied on, that fresh evidence and later case law required a reconsideration of all the facts, and that SM’s deprivation of liberty was insufficiently considered.

1. The claim was dismissed. The Secretary of State was entitled to treat the first determination as standing. Neath had expressly accepted it and was not seeking to reopen it. The first determination had decided that SM was ordinarily resident in Neath immediately before the relevant accommodation was provided.

2. It was at least open to the Secretary of State, under the wide terms of section 32(3) of the National Assistance Act 1948, to state his view of the legal consequence of the first determination. His view that ordinary residence would continue in Neath under section 24(5) did not form part of the first determination itself and was not irrational.

3. Section 24(5) operated where residential accommodation was provided under section 21. Once ordinary residence had been determined in the relevant area immediately before accommodation was first provided, the provision deemed ordinary residence to continue there. The provision was not affected by other factors, including SM’s intention or which authority made the care arrangements.

4. The Secretary of State was entitled to rely on the facts determined in 2010 when making the second determination. He was not required to review the totality of the evidence merely because Neath supplied further material, particularly as Neath had not sought to reopen the first determination. The second determination dealt with Neath’s submissions with sufficient clarity and disclosed no error of law.

5. The material concerning SM’s deprivation of liberty did not require a different conclusion. On the information before him, the Secretary of State was entitled to reach the findings he made. The court observed that more careful preparation of the documentation for the first determination might have avoided substantial public expenditure on litigation.

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