Barking And Dagenham, R (On the Application Of) v Secretary of State for Health

Accommodation under section 21 of the National Assistance Act 1948 is a last-resort duty. The question whether care needs can be met otherwise than by residential accommodation is principally for the local authority, subject to judicial review on ordinary public-law grounds.

A temporary interruption in care does not trigger the duty where the person’s needs have not changed, the existing care continues in alternative accommodation, and the local authority is still assessing the appropriate long-term arrangement. The deeming provision in section 24(5) applies only while residential accommodation is provided under section 21. It does not continue after a lawful transition to supported living services under section 29.

The London Borough of Barking and Dagenham challenged the Secretary of State’s determination that HR was ordinarily resident in Barking for the purposes of funding his care. HR, who had autism and a moderate learning disability, had lived with his parents in Redbridge while receiving care under section 29 of the National Assistance Act 1948.

In August 2012 his parents declined to take him home from respite accommodation in Barking. Redbridge allowed him to remain there while it assessed his future arrangements. In April 2013 it formalised a supported living placement, with personal care continuing under section 29. The central questions were whether the August 2012 interruption triggered Redbridge’s duty to provide residential accommodation under section 21(1)(a), and whether section 24(5) would continue to apply after the supported living arrangement began.

1. Claim dismissed. The section 21(1)(a) duty was not triggered by the August 2012 interruption in HR’s care.
2. The three statutory preconditions are that the person needs care and attention, that need arises by reason of age, illness, disability or other circumstances, and that the required care and attention are unavailable otherwise than through section 21 accommodation. Accommodation under section 21 is a last resort. The assessment is for the local authority, subject to judicial review on ordinary public-law grounds: Wahid v Tower Hamlets [2002] EWCA Civ 287.
3. HR’s care needs had not changed. Before August 2012 they had been satisfactorily met at home through services under section 29. During the interim period, the same personal care continued at the Barking accommodation while Redbridge reviewed the position. The circumstances were therefore an interim decision-making stage, not a situation in which residential accommodation was the only available option.
4. The Secretary of State applied the correct legal test. The court was not entitled to substitute its own view of the appropriate care arrangements. Redbridge had considered substantial relevant material and its decision was lawful and rational.
5. The court expressed an alternative view on section 24(5). Its present-tense wording, read with section 21(5), means that the deeming provision applies while residential accommodation is provided under section 21. It does not apply to services under section 29. Even if section 21 had been triggered in August 2012, the deeming provision would have fallen away when the supported living placement was lawfully formalised in April 2013.
6. Redbridge was permitted to participate in the hearing. Requiring it to duplicate the Secretary of State’s detailed grounds would have been disproportionate and contrary to the overriding objective.

Not an appeal. The Secretary of State’s determination and review decision were challenged by judicial review in the Administrative Court.