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London borough loses ordinary residence battle with neighbouring authority

The London Borough of Barking & Dagenham has lost an appeal in which it argued that it should not be responsible for an autistic man’s care because at the time in question he was resident in neighbouring Redbridge.

Barking and Dagenham challenged a decision by Health Secretary Jeremy Hunt that ‘HR’ was ordinarily resident in its area from at least June or July 2013 for the purposes of the provision of care services.

This meant the council had to meet a £119,600 annual bill, which it argued should be met by Redbridge, being the borough in which HR grew up and was resident until August 2012 when he moved to accommodation in Barking.

The dispute turned on which borough had been responsible in the intervening year.

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HR originally lived with his parents in Redbridge but received respite care at accommodation in Barking.

Both HR and his parents came to prefer him remaining at the respite centre pending a supported living placement. A tenancy agreement was signed on HR's behalf by his parents for a property on which rent started to be paid by Barking through housing benefit.

Barking challenged the decision that HR was ordinarily resident there on the grounds that HR's parents’ refusal to take him back from the Barking accommodation to their home in Redbridge triggered a duty on Redbridge to provide him with residential accommodation and that it had been irrational for the Secretary of State to conclude that it was responsible.

Giving judgment in Barking And Dagenham, R (On the Application Of) v Secretary of State for Health [2017] EWHC 2449, Justine Thornton QC, sitting as a Deputy High Court judge, said the care HR received at his home was provided at Barking after he expressed a wish to live there and in April 2013 Redbridge lawfully formalised the supported living placement for HR.

The Secretary of State therefore properly decided that HR was ordinarily resident in Barking from June or July 2013, if not April 2013.

She added: “I have some sympathy for the position Barking finds itself in. As from 1 April 2015, the National Assistance Act was replaced by the Care Act 2014. Had HR's ordinary residence fallen to be determined a few years later under the Care Act 2014 the outcome might have been different. Section 39 of the Care Act has a similar deeming provision to that of section 24(5) of the NAA but the provision extends to a wider array of accommodation, including supported living arrangements of the type put in place for HR in April 2013.”

Mark Smulian

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