Lancashire County Council, R (On the Application Of) v JM & Anor

For the purposes of the National Assistance Act 1948, the deeming provision concerning ordinary residence may apply where residential accommodation should have been provided by a local authority, although it was not provided in fact. Determining whether accommodation should have been provided requires consideration of whether the authority had a duty to assess, what the assessment would have concluded, and whether the necessary accommodation was otherwise available.

The availability of accommodation includes the resources available to pay for it. Resources derived from a personal injury damages award must be disregarded under section 21(2A). A deputy’s control of those funds does not make them resources belonging to someone else. The Secretary of State may therefore make a reasoned judgment about the counterfactual consequences of the authority’s failure to assess and fund accommodation.

JM, who had suffered a serious brain injury, lived in Lancashire before moving to a transitional rehabilitation unit in St Helens. His deputy arranged and funded the move using funds derived from JM’s personal injury damages award.

Lancashire and St Helens disputed which authority was responsible for funding JM’s accommodation. Under the Care Act 2014, the Secretary of State determined that JM remained ordinarily resident in Lancashire because Lancashire should have assessed him and provided or funded the accommodation before his move.

Lancashire sought judicial review, arguing that JM’s needs were already met by privately arranged accommodation and that the Secretary of State had impermissibly relied on speculation and the deeming provision in section 24(5).

1. The claim was dismissed. The Secretary of State had approached the ordinary-residence determination lawfully and reached conclusions open to him on the evidence.
2. Section 47(1) of the National Health Service and Community Care Act 1990 establishes a low threshold for assessment. Once it appears to the authority that a person may need community care services, assessment is mandatory. The discretionary question arises later, when deciding what services, if any, to provide. The Secretary of State was entitled to find that Lancashire’s safeguarding meetings gave it sufficient knowledge of JM’s potential needs to trigger that duty.
3. Section 21(1)(a) of the National Assistance Act 1948 requires consideration of whether care and attention are otherwise available. That question includes the resources available to pay for the accommodation. Section 21(2A) required JM’s personal injury damages to be disregarded. Funds controlled by the deputy remained JM’s resources and were not to be treated as resources available for the statutory determination.
4. The principle in R (on the application of London Borough of Greenwich) v Secretary of State for Health [2006] EWHC 2576 (Admin) applies where accommodation should have been provided by the responsible authority, even if it was not provided in fact. Applying that principle necessarily involves a judgment about what assessment and arrangements would have occurred if the authority had complied with its duties. That exercise was not impermissible speculation.
5. The decision in R (on the application of Barking & Dagenham LBC) v Secretary of State for Health [2017] EWHC 2449 (Admin) did not create a different principle. It confirmed that section 24(5) does not apply where the authority’s failure to provide accommodation was not a breach of duty. The Secretary of State correctly addressed whether Lancashire should have provided accommodation.
6. It was open to the Secretary of State to conclude that Lancashire should have assessed JM, that the assessment should have identified a need for accommodation not otherwise available, and that the deputy would probably have accepted local-authority funding. Section 24(5) therefore operated so that JM remained ordinarily resident in Lancashire.