Unilateral decision to move woman to supported housing not unlawful, say judges

Buckinghamshire County Council has failed to persuade the Court of Appeal to declare that a unilateral decision by the Royal Borough of Kingston-upon-Thames to move a woman with epilepsy into supported housing in its area was unlawful.

In Buckinghamshire County Council v Royal Borough of Kingston upon Thames [2011] EWCA Civ 457, the woman (SL) was a 36-year-old individual who also had learning difficulties. She came to the UK from Uganda in 1988.

Kingston Council arranged school placements for SL. In 1995 she was placed at a care home in Chalfont St Peter, Buckinghamshire, that was owned and operated by the National Society for Epilepsy (NSE). In 2004 she was moved to Hampshire House, another NSE care home in Buckinghamshire, with a view to giving her greater independence.

At an annual review conducted by Kingston in January 2009, she expressed a wish to move into “supported living with friends”. Policy in recent years has been to encourage disabled adults where possible to move from care homes into supported housing.

SL was then moved into a bungalow in Chalfont St Giles in Buckinghamshire, accommodation she shared with two other persons. The bungalow was owned by a registered charity, Zetetick Housing. The NSE meanwhile continued to provide care through its domiciliary care agency.

Kingston initially continued to pay for SL’s care following her move but in November 2009 it sought to transfer responsibility to Buckinghamshire. The county council resisted the proposal.

During the years that Kingston placed SL in the NSE’s care it had exercised powers under s. 21 of the National Assistance Act 1948. It remained liable to pay for her accommodation at the care home by virtue of the deeming provision in section 24(5), with SL having been “ordinarily resident” in the borough “immediately before the residential accommodation was provided for her”.

It was common ground that by moving to her own accommodation under supported housing arrangements, SL had become ordinarily resident in Buckinghamshire.

The county council accepted that the effect of Kingston’s decision to move SL was, if lawful, to make it responsible for arranging and funding SL’s community care provision. Buckinghamshire therefore applied for a declaration that the decision was unlawful. On 12 July 2010 Wyn Williams J refused that application.

Buckinghamshire appealed, arguing that Kingston had a duty to act fairly towards the county council when taking decisions about SL that would have significant and important consequences for it. The appellants complained that Kingston should have consulted with them before taking the decision, for example to allow them to provide relevant information on issues particular to its area. This would have led to a better informed decision, it was suggested.

This claim was refined to one that the respondents were in breach of their duties to SL in failing to consult or to notify the appellants about the decision they proposed to take in relation to her as service user. Performance of these duties comprehended a duty to consult the appellants, it was argued on Buckinghamshire’s behalf.

Giving the lead judgment, Lord Justice Pill said it was accepted that while primary care trusts, health authorities and the Secretary of State are given a status in the decision making process under section 47 of the National Health Service & Community Care Act 1990, no status was expressly conferred in that section on local authorities in the position of the appellants.

The Secretary of State had not given a direction under section 47(4) of the 1990 Act which bears upon a duty to consult the appellants and, in guidance under the section, the Secretary of State had not indicated that there should be such consultation, he added.

“In those circumstances, it is extremely difficult to find any legal basis upon which a duty of fairness to the appellants, in the form of a duty to consult them, when making a decision as to the placement of SL, can be established,” Lord Justice Pill suggested.

“The respondents are exercising powers in performance of a duty to SL. They do so in accordance with a statutory procedure. The role of the appellants, as potential payers for services, is essentially incidental to that process.”

The judge added that Kingston was not in a judicial or quasi-judicial position in relation to Buckinghamshire out of which a duty of fairness would arise. “They are performing, in accordance with statute, a duty to SL,” he added. “It is fairness to the service user which must be at the centre of decision making. Fairness to the appellants could arise only if performance of that duty requires a duty to consult the appellants.”

The judge said he could see no basis on which the court could create such a duty. “It would inevitably complicate the decision making process in relation to SL,” Lord Justice Pill suggested. “The obtaining of information from the appellants is one thing but, if the appellants were to have a status in the procedure, there would be a large potential for differences of view and for delay.”

There would also be a real danger that, in addition to delay, there would be satellite litigation between local authorities, he warned. “Cooperation in the obtaining of information is to be encouraged but an enforceable duty should not in my judgment be read into the procedure. If it were to be imposed, it should be created, and its scope defined, by statute or in plain directions from the Secretary of State.”

The Court of Appeal judge added that had Parliament intended to make provision for the protection of the financial or other interests of different authorities in the decision making process, express provision would have been made.

He added: “The good faith of the respondents (Kingston) in the decision making process has not been challenged in this appeal. If, in another case, it were to be established that the motivation for decisions under section 47 as to where to place service users was financial, different considerations would apply.”

Lord Justice Patten agreed with Lord Justice Pill. “It would, I think, be quite inconsistent with the purpose and structure of s. 47 to single out BCC and those in a similar position as justifying an elevated status of statutory consultee when the only avowed purpose of that is to ensure that the assessment is as accurate as it can be,” he said.

“They wish to act in effect as proxies for SL and to double check the assessment on her behalf. But there is no need for this. She can challenge the outcome for herself if she has grounds to do so.”

The judge added that Buckinghamshire assumed responsibility for SL when she moved to private accommodation in their area and could have carried out their own s. 47 assessment to resolve any issues between them and the local housing authority. “This and other factors which I mentioned earlier….point in my view decisively against the implication of the legal duty which is contended for.”

He added: “I also agree with Pill LJ that although good administration will doubtless be enhanced by a proper degree of communication between the outgoing and the incoming s. 21 authorities, that is insufficient in itself to confer on BCC the legal status which it seeks.”

Philip Hoult