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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cardiff County Council, R (on the application of) v The Welsh Ministers [2009] EWHC 3684 (Admin) (03 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/3684.html Cite as: [2009] EWHC 3684 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Administrate Court Office for Wales Cardiff Civil Justice Centre
		3rd June 2009

1. THE DEPUTY JUDGE: The claimant, Cardiff City Council, to which I shall refer to as "CCC", seeks to challenge a decision of the Welsh Ministers, dated 14th December 2007, that CCC rather than the Royal Borough of Kensington and Chelsea ("RBKC") is responsible for the funding of the care of a woman I shall call EK. She has cerebral palsy and significant hearing impairment and was originally in receipt of care paid for by RBKC under the National Assistance Act 1948.
2. In July 1994, for reasons which are not material, RBKC secured a placement for her in a care home in Cyncoed, Cardiff, which was registered under the Registered Homes Act 1984. Shortly afterwards she met her current boyfriend, TP. He has physical disabilities and himself requires care.
3. In 1992 they both moved to a residential care home in Grangetown in Cardiff and EK continued to have about 28 hours staff support each week as well as sleep-in staff support through the night. That accommodation and care, paid for by RBKC, was provided by Scope, a registered charity for people with cerebral palsy.
4. Whilst for most purposes EK was by now ordinarily resident in Cardiff, under the deeming provisions of the statutory scheme, set out in the 1948 Act, she was deemed to continue to reside within the area of RBKC. That is because that is where she resided immediately before residential accommodation was provided to her under the 1948 Act. However, RBKC contended that that changed on 16th December 2002 when EK took a tenancy of and moved into a one bedroom flat in Cowbridge Road, West Cardiff, owned by Cadwyn Housing Association. Her rent is paid for by way of housing benefit. The care which EK received remained at substantially the same level. TP took a tenancy of a one bedroom flat next door. Between the two is a staff bedroom which has access to both flats where sleep-in staff support continues to be provided.
5. The care continued to be provided by Scope and paid for by RBKC. Some of this funding was provided by way of a scheme known as "Supporting People". But towards the end of 2005, RBKC was informed that some of that funding would be reduced. Moreover the care was no longer going to be provided by Scope but another charity, Ategi. RBKC offered to EK a residential placement within its area, but she declined on the basis that she wished to remain in Cardiff with TP. In November 2005 RBKC wrote to CCC saying it proposed to discontinue the care package for EK on the ground that she was no longer resident in its area. CCC objected on the basis that EK's needs had not changed and that the residential accommodation under the 1948 Act can be provided by private organisations such as a housing association. Accordingly, said CCC, the deeming provisions still applied.
6. The Welsh Ministers preferred the argument of RBKC. CCC challenges that decision as irrational and unreasonable and as misconstruing the provisions of the statutory scheme, as interpreted by the courts. Moreover it is said that the Welsh Ministers failed to hold that CCC had a legitimate expectation that the funding given by RBKC would continue given the continuation of circumstances.
7. The matter first came before me in January 2009. My understanding was that it was agreed that any decision I made would not affect the level of care given to EK. Accordingly, she was not a party to these proceedings or represented or indeed aware of the proceedings. During the opening it emerged that CCC could not give an assurance to that effect without carrying out an assessment of the needs of EK. Accordingly the hearing was adjourned for that assessment to be carried out which in due course it was. That showed that, if anything, CCC assessed EK's needs as having increased. On the basis that any decision of this court would not therefore change the level of care to which she was entitled, but that the decision would determine only who pays for that care, all parties are agreed that it is not appropriate or desirable that EK should be joined in the proceedings.
8. Before turning to the decision of the Welsh Ministers in greater detail, it is necessary to set out the provisions of the statutory scheme and also to say something of its context. As originally enacted, section 21(1) of the 1948 Act imposed on local authorities the duty to provide two types of accommodation: residential accommodation for the elderly and the infirm and also temporary accommodation for those in urgent need of it. By section 29(1) of that Act, such authorities were also required to provide a range of welfare services for disabled people. That obligation was later expanded by the Chronically Sick and Disabled Persons Act 1970.
9. The scheme was substantially altered by the National Health Service and Community Care Act 1990, the object of which was to promote professional assessments of people's needs rather than to pay for them to enter residential homes. Section 21(1) of the 1948 Act was amended to bring within its ambit persons with illness and disability. Its affect was to import the residential component of the services for the care of the sick under the National Health Act 1977. The aim was to bring them all within the same assessment and charging regime.
10. I now set out the statutory provisions. Section 21(1)(a) of the National Assistance Act 1948 reads:

"(1)Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing—

(a)residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

(aa)residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them

(1A)A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(1B)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(2)In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.

(2A)In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person, a local authority shall disregard so much of the person's resources as may be specified in, or determined in accordance with, regulations made by the Secretary of State for the purposes of this subsection.

(2B)In subsection (2A) of this section the reference to a person's resources is a reference to his resources within the meaning of regulations made for the purposes of that subsection.

(4)Subject to the provisions of section 26 of this Act accommodation provided by a local authority in the exercise of their functions under this section shall be provided in premises managed by the authority or, to such extent as may be determined in accordance with the arrangements under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.

(5)References in this Act to accommodation provided under this part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.

(6)References in this Act to a local authority providing accommodation shall be construed, in any case where a local authority agree with another local authority for the provision of accommodation in premises managed by the said other authority, as references to the first-mentioned local authority.

(7)Without prejudice to the generality of the foregoing provisions of this section, a local authority may—

(a)provide, in such cases as they may consider appropriate, for the conveyance of persons to and from premises in which accommodation is provided for them under this Part of the Act;

(b)make arrangements for the provision on the premises in which the accommodation is being provided of such other services as appear to the authority to be required.

(8) . ., nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act [or authorised or required to be provided under the National Health Service Act 1977."

Section 24(1) and (5) of that Act states:

"Authority liable for provision of accommodation (1)The local authority empowered under this Part of this Act to provide residential accommodation for any person shall subject to the following provisions of this Part of this Act be the authority in whose area the person is ordinarily resident.

...

(5)Where a person is provided with residential accommodation under this Part of this Act, he shall be deemed for the purposes of this Act to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him."

Section 26(1)A, (2), (4A) and (5) state:

"(1)Subject to subsections (1A) and (1C) below, arrangements under section 21 of this Act may include arrangements made with a voluntary organisation or with any other person who is not a local authority where—

(a)that organisation or person manages premises which provide for reward accommodation falling within subsection (1) (a) or (aa) of that section, and

(b)the arrangements are for the provision of such accommodation in those premises.

(1A)Arrangements must not be made by virtue of this section for the provision of accommodation together with nursing or personal care for persons such as are mentioned in section 3(2) of the Care Standards Act 2000 (care homes) unless—

(a)the accommodation is to be provided, under the arrangements, in a care home (within the meaning of that Act) which is managed by the organisation or person in question; and

(b)that organisation or person is registered under Part II of that Act in respect of the home.

(1C)Subject to subsection (1D) below, no arrangements may be made by virtue of this section for the provision of accommodation together with nursing without the consent of such Primary Care Trust or Health Authority as may be determined in accordance with regulations.

(1D)Subsection (1C) above does not apply to the making by an authority of temporary arrangements for the accommodation of any person as a matter of urgency; but, as soon as practicable after any such temporary arrangements have been made, the authority shall seek the consent required by subsection (1C) above to the making of appropriate arrangements for the accommodation of the person concerned.

(2)Any arrangements made by virtue of . . . this section shall provide for the making by the local authority to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements and subject to subsection (3A) below the local authority shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this section.

(3)Subject to subsection (3A) below A person for whom accommodation is provided under any such arrangements shall, in lieu of being liable to make payment therefore in accordance with section twenty-two of this Act, refund to the local authority any payments made in respect of him under the last foregoing subsection:

Provided that where a person for whom accommodation is provided, or proposed to be provided, under any such arrangements satisfies the local authority that he is unable to make a refund at the full rate determined under that subsection, subsections (3) to (5) of section twenty-two of this Act shall, with the necessary modifications, apply as they apply where a person satisfies the local authority of his inability to pay at the standard rate as mentioned in the said subsection (3).

(3A)Where accommodation in any premises is provided for any person under arrangements made by virtue of this section and the local authority, the person concerned and the voluntary organisation or other person managing the premises (in this subsection referred to as 'the provider') agree that this subsection shall apply—

(a)so long as the person concerned makes the payments for which he is liable under paragraph (b) below, he shall not be liable to make any refund under subsection (3) above and the local authority shall not be liable to make any payment under subsection (2) above in respect of the accommodation provided for him;

(b)the person concerned shall be liable to pay to the provider such sums as he would otherwise (under subsection (3) above) be liable to pay by way of refund to the local authority; and

(c)the local authority shall be liable to pay to the provider the difference between the sums paid by virtue of paragraph (b) above and the payments which, but for paragraph (a) above, the authority would be liable to pay under subsection (2) above.

(4)Subsections (5A), . . . , (7) and (9) of the said section 22 shall, with the necessary modifications, apply for the purposes of the last foregoing subsection as they apply for the purposes of the said section 22.

(4A)Section 21(5) of this Act shall have effect as respects accommodation provided under arrangements made by virtue of this section with the substitution for the reference to the authority managing the premises of a reference to the authority making the arrangements.

(5) Where in any premises accommodation is being provided under . this section in accordance with arrangements made by any local authority, any person authorised in that behalf by the authority may at all reasonable times enter and inspect the premises."

Section 29(1) of that Act states:

"Welfare arrangements for blind, deaf, dumb and crippled persons, etc

(1)A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."

Section 32(3) of that Act states:

"(3)Any question arising under this Part of this Act as to the ordinary residence of a person shall be determined by the Minister."

Section 2(1)(a) of the Chronically Sick and Disabled Persons Act 1970 states:

"(1)Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely—

(a)the provision of practical assistance for that person in his home..."

Section 47(1)(a) and (b) of the National Health Service and Community Care Act 1990 states:

"(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority—

(a) shall carry out an assessment of his needs for those services; and.

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."

11. Judicial interpretation of section 21(1) of the 1948 Act has taken place in claims for residential accommodation under that section by asylum seekers who might otherwise not be entitled to have accommodation provided to them by local authorities. I bear that in mind. But the observations made in the authorities are not limited to such claims.
12. There are three main authorities to which my attention was drawn. The first is the case of Abdul Wahid v The Mayor and Burgesses of The London Borough of Tower Hamlets [2002] EWCA Civ 287. That was a case where the claimant suffered from schizophrenia and lived with his wife and eight children in a two bedroom flat on the ground floor of a large residential block owned by that council. The claim was that he was entitled to better accommodation as a person in need of care and attention under section 21(1) of the 1948 Act.
13. In dealing with the appeal to the Court of Appeal against the dismissal of the claim for review, Pill LJ observed that it was for the authority to make a decision of whether an applicant is in need of care and attention which is not otherwise available to him, subject to the possibility of challenge by way of judicial review on any of the usual grounds. Pill LJ observed that better accommodation would no doubt be advantageous to the claimant but a decision that the overcrowding of the present accommodation did not create a need for care and attention was not irrational and was properly reached. Hale LJ agreed that the appeal should be dismissed for the reasons given by Pill LJ. At paragraph 30, she said this:

"Under section 21(1)(a) of the National Assistance Act 1948, local social services authorities have a duty to make arrangements for providing residential accommodation for people over 18 (who are ordinarily resident in their area or in urgent need) where three inter-related conditions are fulfilled:

(1) the person is in need of care and attention;

(2) that need arises by reason of age, illness, disability or any other circumstances; and

(3) that care and attention is not available to him otherwise than by the provision of residential accommodation under this particular power.

Three further points are also relevant:

(1) it is for the local social services authority to assess whether or not these conditions are fulfilled, and if so, how the need is to be met, subject to the scrutiny of the court on the ordinary principles of judicial review;

(2) section 21 does not permit the local social services authority to make provision which may or must be made by them or any other authority under an enactment other than Part III of the 1948 Act (see s 21(8)); but

(3) having identified a need to be met by the provision of residential accommodation under section 21, the authority have a positive duty to meet it which can be enforced in judicial review proceedings..."

In paragraph 31 Hale LJ then continued as follows:

"I agree with Stanley Burnton J, at first instance..., that there are several indications in the Act that the kind of accommodation originally envisaged was in a residential home or hostel. This is the power under which local authorities provided elderly and aged people's homes or arranged accommodation in such homes run by others. However, it can no longer be assumed that a need for care and attention can only be properly met in an institutional setting. There are people who are undoubtedly in need of care and attention for whom local social services authorities wish to provide residential accommodation in ordinary housing. The most obvious examples are small groups of people with learning disabilities who are able to live in ordinary houses with intensive social services support; or single people with severe mental illnesses who will not receive the regular medication and community psychiatric nursing they need unless they have somewhere to live. Whatever the words 'residential accommodation' may have meant in 1948, therefore, they are a good example of language which is 'always speaking' and can change its meaning in the light of changing social conditions (see the observations of this Court in R v Westminster City Council, ex parte M, P, A and X [1997] 1 CCLR 85, at p 90). Hence Mr Knafler, in common with others who have appeared for local social services authorities, has conceded that 'residential accommodation' can mean ordinary housing without the provision of any ancillary services.

32. But it does not follow that because residential accommodation can mean ordinary housing and the claimant is in need of ordinary housing, a duty arises to provide him with that housing under section 21(1)(a). That duty is premised on an unmet need for 'care and attention' (a 'condition precedent', as this Court put it in the Westminster case, at p 93E). These words must be given their full weight. Their natural and ordinary meaning in this context is 'looking after': this can obviously include feeding the starving, as with the destitute asylum seekers in the Westminster case. Ordinary housing is not in itself 'care and attention'. It is simply the means whereby the necessary care and attention can be made available if otherwise it will not..."

14. The section was again considered, this time by the House of Lords in Regina (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956. That involved a woman who was a wheelchair user, who claimed political asylum. The local authority took view, that it was not obliged to pay for accommodation with wheelchair access under section 21(1)(a) of the 1948 Act because the national asylum support services was obliged to pay for that accommodation pursuant to its powers under section 95(1) of the Immigration Asylum Act 1999 to provide support for destitute asylum seekers. NASS refused to pay on the grounds that the local authority had a duty under section 21(1)(a) of the 1948 Act. The judge and the Court of Appeal dismissed the local authority's application for review and the House of Lords also dismissed the appeal. Lord Hoffmann at paragraph 26 said this:

"It is apparent from the language of section 21(1)(a) that the power or duty to provide accommodation is dependent upon three conditions being satisfied: first, the person must be in need of care and attention; secondly, the need must arise by reason of age, illness, disability or 'other circumstances' and, thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21... The effect of the third condition is that, normally, a person needing care and attention which could be provided in his own home, or in a home provided by a local authority under the housing legislation, is not entitled to accommodation under section 21. That is why the use of the section had previously been for the most part limited to the provision of accommodation in specialist institutions like homes for the aged, in which the necessary care and attention could be provided more conveniently than in separate dwellings."

The section again was considered by the House of Lords in the Regina (M) v Slough Borough Council [2008] 1 WLR 1808. That involved a citizen of Zimbabwe who was given leave to enter the United Kingdom and who needed medication to be kept in refrigerated conditions. He applied to the local authority for an assessment of his needs. The local authority took the view that it did not owe him a duty under section 21(1)(a) since he was not in need of care and attention. The judge granted the claimant's application for judicial review and the Court of Appeal dismissed the local authority's appeal but they applied to the House of Lords who allowed the appeal. Lord Bingham and Lord Scott agreed with the opinion of Baroness Hale, as she by this time had become. In paragraph 14 of her opinion the Baroness said this:

"Unlike the services provided by the National Health Service, section 21(1)(a) accommodation has never been free. It was a point of pride in 1948 that people going into local authority old people's homes were not going into the poorhouse. They were expected to pay what they could, up to the full cost if they could afford it. The criterion for eligibility was the reason why such accommodation was needed rather than the need for accommodation as such. As Lord Hoffmann observed in R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956, para 32, the obligation under section 21(1)(a) was owed to the wealthy as well as the poor.

15 Thus it has always been assumed that the words 'which is not otherwise available to them' govern the words 'care and attention' and not the words 'residential accommodation' in both section 21(1)(a) and (aa). A person may have a roof over her head but still be in need of care and attention which is not available to her in that home and therefore qualify for residential accommodation under section 21(1)(a) or (aa). Old people who had homes of their own were and are regularly accommodated in old people's homes under this provision when no longer able to cope in their own homes.

16 The alternative construction, that the words 'which is not otherwise available to them' govern the words 'residential accommodation', is grammatically attractive. But not only would it defeat the main purpose of the section, which is to make special provision for those with special needs; it would be contrary to the construction which has twice been adopted in this House, in Steane v Chief Adjudication Officer [1996] 1 WLR 1195, 1202, and Chief Adjudication Officer v Quinn [1996] 1 WLR 1184, 1194; and to the understanding of Parliament when it enacted section 21(2A), inserted by section 1 of the Community Care (Residential Accommodation) Act 1998, which begins: 'In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person ...' This time Parliament got the grammar right and the meaning is plain.

17 Section 21(1)(a) did not feature in the law reports at all until after the 1990 Act came into force. A handful of cases were triggered by the decisions of local social services authorities either to transfer their own old people's homes to voluntary organisations or the private sector or to close them down altogether..."

At paragraph 30 the Baroness continued thus:

"My Lords, it might appear that this case too is part of the 'inverted and unseemly turf war' between central and local government, but although the Secretary of State intervened on a different issue in the Court of Appeal, he has not intervened on the issues before us. The main issue is the precise meaning of the words 'in need of care and attention which is not otherwise available to them'. It may well be that those who drafted section 21(1)(a) in 1948 assumed that it only applied to people who needed extra care and attention which could not be provided in their own homes. They undoubtedly drew a distinction between the ordinary homeless, who were catered for under what was then section 21(1)(b), and those with special needs, who fell within section 21(1)(a). Be that as it may, we are required, by R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956, to accept that people who need care and attention which could be provided in their own homes, if they had them, can fall within section 21(1)(a). But that does not answer the question in this case."

That opinion was also agreed to by Lord Brown, who at paragraph 40 said this:

"A person must need looking after beyond merely the provision of a home and the wherewithal to survive- beyond, therefore, the needs able to be met by NASS for suitable accommodation and subsistence. The looking after required does not have to be for either nursing or personal care. It must, however, be of such a character as would be required even were the person wealthy. It is immaterial that this care and attention could be provided in the person's own home if he had one (as he would have if he were wealthy). All that is required is that the care and attention needed must not be available to him otherwise than by the provision of section 21 accommodation."

Lord Neuberger, again having read in draft the opinions of Baroness Hale and Lord Brown, went on to deal with the issue himself and came to a similar conclusion.

15. Having dealt with the interpretation of the section in question, I now turn to the decision of the Welsh Ministers in more detail. The dispute between the respective local authorities was referred to the Welsh Ministers under section 32(3) of the 1948 Act. RBKC had referred the case to the Secretary of State for Health. Under the terms of an agreement concluded between the National Assembly for Wales, whose functions were by then performed by the Welsh Ministers under the provisions of Government of Wales Act 2006 and the Secretary of State under section 41 of the Government of Wales Act 1998, the determination was made by the Welsh Ministers as EK was resident in the Welsh authority's area at the time the dispute was referred.
16. The determination was made on the basis of a number of documents submitted, together with an agreed statement of facts. This had been drafted by counsel for CCC, who appeared in this case and agreed to by counsel for RBKC who also appeared in this case.
17. The facts were summarised that EK had learning difficulties which resulted in behavioural and emotional difficulties. The personal care which she required includes assistance with mobility and communication and therefore, according to the determination, incorporated assistance with bodily functions. The determination recorded that on 16th December 2002 EK moved to a new flat and the way that EK's needs for accommodation and care and attention were met changed. It was recorded that she had move into the flat having entered into a tenancy agreement and the landlord was a housing association. At paragraph 10 the determination continues as follows:

"The personal care and other care services which were required were funded by RBKC as an administrating authority for the Supporting People Grant Programme. When the amount of funding to which EK was entitled under grant programme was reduced on or after 26th September 2005, then RBKC correspondingly increased its funding."

18. The determination was that EK ceased to be provided with accommodation by RBKC when she moved into Cowbridge Road West, Cardiff. It was observed that CCC's submission was in essence that there was a continuous chain of provision of accommodation by RBKC, in fulfilment of its duty under section 21 which was unbroken by the move from the residential care home in Grangetown to the tenancy with a housing association in Cowbridge Road West.
19. At paragraph 12 the determination provides as follows:

"However, although prior to the 16th December 2002 and prior to moving to Cowbridge Road West, EK presented as having a continuing need for residential accommodation, by establishing an entitlement to her own accommodation, she effectively changed the nature of her need. In a situation such as arises in this case, where the response to the apparent section 21 need arranging for the provision of care services for a person who has, whether with assistance or not, resolved his or her need for accommodation, then the provision of the care and the provision of the accommodation are effectively disaggregated."

In paragraph 13 comes another important passage of the determination as follows:

"In a case such as this, the applicant's need for accommodation falls away from the moment she enters into the tenancy agreement. Accommodation, from that point is 'otherwise available' to EK and any reassessment of the need for accommodation would be negative. In September and October 2005 an assessment and revision of EK's care plan did take place, updating the level of need for personal care services, but without reference to accommodation, because this had now fallen outside the services which RBKC were providing."

20. The statement of facts to which I have referred included the assertion that after 16th September 2002, EK was in receipt of substantial personal care. That, as counsel now accept, was rather lose language. RBKC had carried out an assessment of EK's needs in June 2000. The following were the pertinent findings in respect of EK's needs: Firstly, that those needs were complex. EK was living semi independently but was hoping to move to a new property and obtain her own tenancy. She was aware that the current tenancy of Scope was going to be terminated and therefore needed to find a new property. Secondly, EK was very able in all her personal care and requested no help from anyone in that area. It was noted that the occupational therapist felt that there was a risk of EK falling when she was getting into and out of the bath. Thirdly, she needed help with her mobility and used a wheelchair when she was out of the property. Fourthly, accordingly, her need indicated a ground floor property, or a property with a lift. Fifthly, EK herself would like less involvement from staff. Finally, she wanted to remain with her boyfriend and in the Grangetown area of Cardiff.
21. Surprisingly no mention in that assessment was made of the sleep-in arrangements. Those had always been put into place. EK's needs had not changed. From a timetable of uncertain date, it was clearly envisaged that this would be continued, as indeed it has been. Further, the assessment that was carried out in 2005, which recorded no substantial change in EK's needs, recognised the sleep-in arrangements.
22. The statement of facts also referred to two important letters. The first is from the housing and social services manager of RBKC to the project manager of the Stepping Stones Project in Cardiff. It is dated 8th September 2000 and refers to EK. The letter says this:

"Further to our discussions I can confirm that [EK] is the responsibility of the Royal Borough. As such we would agree in principle to fund her care needs. The care package will be for the support hours required for [EK] to move to independent living and will be based on recommendations of the care manager's assessment."

23. By letter dated 20th November 2000, Scope's project manager wrote to a social worker in the department of social services at RBKC, referring to EK and the proposed move to her own accommodation. The letter includes this paragraph:

"Regular meetings with Cardiff Social Services and Cardiff Housing Services have resulted in a number of properties/sites being proposed. This proactive stance demonstrates the City and County of Cardiff's commitment to move Scope services users from our residential services to newly adapted, or modern purpose built accommodation. This commitment is on the basis that Cardiff will occur no additional costs and that each responsible authority will continue to fund their service user."

The word "occur" is clearly a mistake for "incur".

24. Against that background there are a number of challenges made to the decision of the Welsh Ministers. The first is that it is clear from those letters that RBKC made arrangements for the provision of accommodation for EK by Scope, within the meaning of section 21(1)(a). It is accepted that RBKC could not delegate it duties under that section to Scope. It is submitted, however, that on a fair interpretation of those letters RBKC appointed Scope as its agent for the purposes of finding accommodation as opposed to any decision-making function. It was further submitted that there has over the years been a shift of focus from the provision of accommodation to the assessment of needs and the passages in the M case, which I have cited above were heavily relied upon.
25. Against those submissions, it was submitted on behalf of the Welsh Ministers and RBKC that accommodation is no longer provided pursuant to section 21(1)(a). Care is provided by reason of section 29 of the 1948 Act, so that the Welsh Ministers were entitled to find that the provision of care and accommodation has been, in the words of the Welsh Ministers, disaggregated. I remind myself that Parliament has entrusted the determination of the question of ordinary residence to the Welsh Ministers. That involves a consideration of section 24(5) which in turn requires determination of whether a person is provided with residential accommodation, under section 21(1). That determination is reviewable on judicial review grounds. But I must not substitute my decision for that of the Welsh Ministers. I am concerned more with the decision-making process than with the merits of the decision.
26. I was referred to guidance which is applicable in this situation. It is guidance issued by the then Welsh Office on 26th June 1993 with reference WOC41/93 and deals with the question of ordinary residence for the purposes of personal social services. It is addressed to the chief executives of county councils in Wales, the directors of social services, the chief executives of the health authorities and NHS Trusts and family health services authority. In paragraph 10 this is said:

"Where, following assessment, a local authority arranges a placement in a private or voluntary home in another authority's area or in a home provided by another local authority, the placement authority will normally retain for that person the same responsibility that it has for someone living in its own area. The person so placed will not as a general rule become ordinary resident in the other local authority's area. If subsequently, by private arrangement, the person moves, he may, dependent on the specific circumstances, become ordinary resident in the area of the local authority where he has chosen to live."

It is that latter situation, which, it is said on behalf of the Welsh Ministers and RBKC, pertains in this case.

27. In my judgment, the Welsh Ministers were entitled to find that EK is no longer provided with accommodation under section 21(1)(a). The determination is to be read as a whole in a common sense way and not with an over critical eye. The rationale for the decision is, in my judgment, clear. The Welsh Ministers took the view that there was, in their phraseology, a break in the chain of causation. In my judgment that decision was not irrational, or unreasonable, or wrong in law, but a decision to which the Welsh Ministers were entitled to come.
28. In my judgment, it is not the case that because EK's needs did not change, it must follow that residential accommodation continues to be provided under section 21(1)(a). An example was given in argument which is also contained in draft guidance on the issue which is presently out to consultation in England. The example is of a young adult with needs of care and attention, living with parents, at home, where care cannot be given in that setting. The scenario continues that residential accommodation might then be given to that young adult, under section 21(1)(a), so that care, otherwise unavailable may be provided. The parents then move to a larger home, for example, which has easy wheelchair access on the ground floor where the care can be given and the young adult returns to live with her parents. The care which she needs is then provided in that home. The needs remain constant but it could not be said, it is argued, in those circumstances that residential accommodation is provided under section 21(1)(a). In my judgment, that example is analogous to the present one and for the reasons I have given the Welsh Ministers were entitled to so find.
29. Secondly, submits CCC, the Welsh Ministers were wrong in paragraph 13 of the determination to say that there was a change in the nature of the need of EK. Taken in isolation that sentence may well suggest that there was a material flaw in the decision-making process. But reading it as a whole, it is tolerably clear, in my judgment, that what was meant was the way in which the needs were met had changed. That much is stated in terms in paragraph 10.
30. Thirdly, it is submitted on behalf of CCC that the reference in paragraph 13 of the determination to accommodation being "otherwise available" is at odds with the interpretation of the subsection given by the House of Lords in the M case. On behalf of the Welsh Ministers it was accepted that the phrase "otherwise available" in paragraph 13 must refer to the words of sections 21(1)(a) and accordingly that the sentence taken by itself appears to be at odds with the interpretation given by the House of Lords in that case. Again, however, in my judgment, one must look at the context and in particular the sentence before and after the one complained of.
31. It is tolerably clear from that context that the Welsh Ministers approached the determination on the basis that the need for accommodation had changed but that the need for care had not. It is clear in this case that care was not otherwise available. It was not contended that it was. Accordingly, in my judgment, there is nothing in this third challenge.
32. Fourthly, it is said that the Welsh Ministers in referring to personal care misinterpreted the facts and counsel fairly accepted that some blame might attach to the agreed statements of fact in this context. But it is clear, in my judgment, from paragraph 2 of the determination that the Welsh Ministers took personal care to mean assistance with mobility and communication. EK undoubtedly has the need for such assistance. In my judgment, it is tolerably clear that the Welsh Ministers did not proceed on the basis that EK had a need of care of her person because it is clear from the source documents and the assessments that that was not the case. Moreover, this issue only arises in the context of section 26 of the 1948 Act, which all parties agree does not apply in this case, albeit that they give different reasons. In my judgment, that is not a material error.
33. That leads on to the next challenge which relates to section 26. On behalf of CCC it is now accepted that the Cadwyn property is not managed by either CCC or RBKC, so the property does not come within 26(1). In my judgment the property is not a registered care home, so section 26(1)(a) does not apply either. Again, in my judgment, there is no material error of law in the determination of the Welsh Ministers' decision. For the reasons I have already given, it is clear that the essential basis for the determination was the change of accommodation on 16th December 2002 and that the Welsh Ministers had substantial grounds for coming to the determination which it did.
34. Next, it is said that that the determination of the Welsh Ministers does not give sufficient recognition to the Convention of the Rights of Persons with Disabilities. That arises in the context of criticism of a 1996 Audit Commission report about the plethora of guidance concerning the assessment process. The recommendation of that report was as follows:

"The effect of all this is to produce a maize of different criteria which are complex and difficult for people to understand. People who qualify for care in one authority may not qualify in another. The price of freedom of local decision making is considerable variation in access to services between areas. Authorities may be able to reduce the worst effect of inequities that result by comparing approaches and here again guidance may be useful."

35. Article 19 of the Convention which was signed by the United Kingdom on 30th March 2007 says this:

"State Parties to the present Convention recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement."

36. There has been continued academic criticism of the extent to which that ideal has been put into operation. Guidance was however given in Wales in September 2002. The guidance is entitled "Health and Social Care for Adults; creating a unified and fair system for assessing and managing care". The guidance was issued under section 7(1) of the Local Authority Social Services Act 1970. It updated and consolidated the former Welsh Office guidance "Management Care" in April 1991 and it provided the required guidance for health bodies to ensure compliance with a target set out in "Improving Health in Wales, a plan for the NHS with its partners."
37. Chapter 5 deals with fair access to care services for all adult groups. In setting the eligibility criteria, paragraph 5.16 of that guidance provided that local authorities should use a framework which is then set out for determining their eligibility criteria. This should be developed in conjunction with statutory health bodies and the framework should assist in the development of unified eligibility criteria over time. Then there is a list of criteria set out.
38. As I understood the position, it was accepted on behalf of CCC that, in terms of assessment for needs under section 21 of the 1948 Act, under section 29 of the 1948 Act and under section 2 of the 1970 Act, that that guidance is binding upon local authorities in dealing with the assessment criteria. In my judgment, therefore, there is no substance in the complaint that the determination of the Welsh Ministers was in breach of the rights given by the Convention.
39. Finally, it is said that CCC had a legitimate expectation that RBKC would continue to provide the funding arising out of the correspondence which took place in September and November 2008. It is said that that gave rise to an expectation of CCC that such funding would continue.
40. The issue of legitimate expectation was raised before the Welsh Ministers. It was submitted on behalf of the Welsh Ministers that it was no part of their determination to make a finding on such legitimate expectation. What they had to do was carry out their statutory function of determining ordinary residents under section 32(3) of the 1948 Act. In my judgment, there is force in that submission.
41. In any event, EK does not make a complaint about legitimate expectation. This is a dispute essentially between two local authorities as to who should pay for her needs and, as I have indicated, it is now confirmed that, if the challenge to the Welsh Ministers' decision fails, the care which she is given will be at least that which is given at the moment. In my judgment, therefore, there is no room for a finding, still less a requirement of the Welsh Ministers to make one, that there was a legitimate expectation that that funding would continue to be provided by RBKC.
42. In so far as it might be suggested that the care under section 29 of the 1948 Act is somehow less certain, less beneficial, or adequate to EK, then I reject that submission. It is clear, in my judgment, from the statutory provisions that I have referred to and the guidance for assessment that there is a reasonably clear workable and fair guidance for the assessment of EK's needs, whether that assessment is carried out under section 21 or section 29.
43. Indeed, if I may say so, the submissions of CCC on legitimate expectation seemed, in the end, to focus more upon a challenge on the basis that EK did not have or did not participate in adequate consultation in relation to the intended move in 2002. It is the case that the intricacies of who should provide her funding were not discussed with her. Of course, these very difficult issues sometimes have to be tackled through the medium, if necessary, of a special advocate.
44. On behalf of RBKC it was submitted that the duty of consultation and any consultation carried out under that duty must be proportionate. In this particular context it was clear, in my judgment, from the assessments carried out that EK maintained throughout a consistent wish, firstly, to stay in Cardiff, secondly, to stay in or near the Grangetown area where she had lived for some years, and thirdly, to stay with TP. She had been offered suitable placement in the area of RBKC and had refused to take that up.
45. It is, in my judgment, putting the requirement too highly to say that, in those circumstances, the intricacies of funding should have been explained to her. It is true that at stage, until the assessment carried out by on behalf of CCC in 2009, it could not have been known precisely whether any decision would have affected adversely the funding available for her care. In the event, we now know that it will not. In my judgment it must have been reasonably apparent on a change from the accommodation in Grangetown to the nearby area of Cowbridge Road,West that such an adverse effect was unlikely, and it was reasonable for the authorities to proceed on that basis.
46. Accordingly, for all those reasons, I am not satisfied that the grounds for challenging the decision of the Welsh Ministers are made out.
47. THE DEPUTY JUDGE: Is it still intended that submissions on costs should be given in writing in seven days?
48. MR WILLIAMS: Fourteen was the time period that was mentioned yesterday.
49. THE DEPUTY JUDGE: My recollection was that it was seven.
50. MR WILLIAMS: In the view of judgment I do hope in fact we can come to some agreement on costs and that failing on that we will make submissions.
51. THE DEPUTY JUDGE: If you are saying that seven would frustrate attempts to agree, then I am quite willing to say 14, as long as there is a reasonable prospect of agreement. What I do not want, Mr Williams, is for this matter to drag on and to have submissions submitted some time in the future when the details have receded.
52. MR WILLIAMS: I can see that had the decision gone the other way, because of what happened in January, things may have been slightly more difficult. In view of the decision I would hope certainly within seven days we will know whether agreement can be reached. It would be unfortunate if we were half way through those submissions when that occurs. I would ask for 14 days my Lord.
53. MISS YEOMAN: My Lord, the local authority has no objections to that.
54. MR BELL: My Lord, we do not object to that.
55. THE DEPUTY JUDGE: Right, I will direct that within 14 days the parties shall submit either a draft consent order on the issue of costs or written submissions on that issue. Then I will make a determination in writing on that issue and send that to the parties. Is there anything else?
56. MR WILLIAMS: Can we thank your Lordship for the hearing yesterday.
57. THE DEPUTY JUDGE: Thank you very much.