12.45R (Greenwich LBC) v Secretary of State for Health [2006] EWHC 2576 (Admin), (2007) 10 CCLR 80
A self-funder who moves voluntarily into care home accommodation in another area becomes ordinarily resident there
Facts: Mrs D was a self-funding care home resident in Bexley. Following an assessment by Bexley, that she needed nursing care, she moved to a nursing home in Greenwich, again on a self-funding basis. Mrs D then became entitled to local authority residential accommodation and Greenwich and Bexley disputed liability. The Secretary of State determined that Greenwich was liable, on the basis that Mrs D had been ordinarily resident in Greenwich at the time her entitlement arose, the 29 June 2002. Greenwich sought a judicial review.
Judgment: Charles J held that where a local authority had been under a duty to make a placement under section 21 of the National Assistance Act 1948 but had not done so, then for the purpose of determining ordinary residence, they would be treated as if they had done so. However, in this case, Mrs D’s family had chosen to place her in Greenwich in circumstances where Bexley had not been in breach of statutory duty. Accordingly, it had been lawful for the Secretary of State to conclude that she had become ordinarily resident in Greenwich.
Comment: the logic of this decision appears to apply under the Care Act 2014 provisions, as does Charles J’s two observations:
•that provided the Secretary of State/appointed decision-maker applies the right criteria, then any evaluative decision is theirs to make, subject only to Wednesbury, a point confirmed in the Cornwall case, at para 43:‘However, it is common ground as I understand it that in the present context, once properly construed, the issue for the Secretary of State was one of factual judgement rather than executive discretion, and that his decision is ‘justiciable’, in the sense that it is reviewable by the courts on ordinary Wednesbury principles: see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 ’;
•if a local authority fails to make the arrangements that it ought to have made under the legislation, that would have resulted in the individual being treated as remaining ordinarily resident in its area, then deeming provisions should be applied on that basis.