Kent County Council, R (on the application of) v The Secretary of State for Health & Ors

Section 24(5) of the National Assistance Act 1948 deems a person to remain ordinarily resident where he was ordinarily resident immediately before the residential accommodation was provided. Both references concern accommodation provided under the Act. The definite article links the second reference to the statutory accommodation already identified.

The deeming rule does not extend to accommodation initially provided or funded by the NHS or another source. The statutory scheme and the separate NHS deeming provision reinforce that construction. The claim was dismissed.

NA, a disabled adult, had been placed in residential accommodation in Kent with NHS funding. When that funding ended, he became entitled to accommodation under section 21 of the National Assistance Act 1948. The Secretary of State determined that Kent was responsible for the funding. Kent argued that section 24(5) preserved responsibility in the local authority area where NA had lived immediately before the placement, regardless of the original funding source.

Eder J refused permission in the Administrative Court in [2014] EWHC 518 (Admin). The Court of Appeal granted permission and heard the judicial review claim. The central issue was whether section 24(5) applied to accommodation not initially provided under the 1948 Act.

1. Disposition. Lord Justice Burnett gave the judgment. Lord Justice Tomlinson and Lord Dyson MR agreed. The claim was dismissed unanimously.
2. Section 24(1) of the National Assistance Act 1948 fixes funding responsibility on the authority in whose area the person is ordinarily resident. The meaning of ordinary residence was not in issue.
3. Section 24(5) had a clear literal meaning. The definite article in the second reference to residential accommodation referred back to the accommodation provided under the 1948 Act in the first reference. Both references therefore concerned accommodation provided under the relevant part of that Act. There was no basis for displacing that straightforward construction.
4. The statutory purpose reinforced the conclusion. The deeming provision ensures continuity of financial responsibility while a person receives section 21 accommodation, including where the person is placed outside the responsible authority’s area. It also prevents an authority from avoiding financial responsibility by placing a person elsewhere.
5. The pre-amendment section 24(6) deeming provision concerned a patient in a hospital and did not assist Kent because Winchester House was not a hospital. The amendment made by the Health and Social Care Act 2008 widened the NHS accommodation deeming rule. That specific legislative treatment showed that Parliament had considered the consequences of NHS-funded accommodation. Kent’s wider construction was inconsistent with the statutory scheme. It would also produce an anomaly by extending to accommodation provided by charities, family members or other private persons.

• Court of Appeal (Civil Division): Permission was granted on paper and the judicial review claim was heard and dismissed: [2015] EWCA Civ 81.
• High Court of Justice, Administrative Court: Haddon-Cave J refused permission on the papers and Eder J refused permission at an oral hearing. The decision is reported at [2014] EWHC 518 (Admin).