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R (Kent County Council) v Secretary of State for Health [2015] EWCA Civ 81

DATE: 11 Feb 2015

NA is severly disabled and lives in residential care.  Over the course of time he moved between accommodation in different local authorities and different funding bodies were involved.  In due course the NHS placed him in Winchester House in Kent.  Section 24(1) of the 1948 Act fixes liability to fund the residential accommodation upon the local authority in whose area the person concerned is "ordinarily resident".   However, there is an exception to that in the form of s24(5) which provided:

“(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.” 

A dispute arose between various local authorities who each considered that, as a result of NA's movements before he arrived at Winchester House, another was obliged to provide funding.  The matter was referred to the Secretary of State for Health who has statutory power to resolve any disagreement as to responsibility between local authorities.  He determined that Kent was responsible because at the date on which the NHS ceased to fund it, NA was ordinarily resident in Winchester House in Kent.  He further determined that s24(5) did not assist Kent here because “the residential accommodation” in that subsection referred to accommodation provided under the 1948 Act.  As it had not been so provided, but was provided by the NHS under other powers, Kent could not rely upon s24(5). 

The question was whether the "residential accommodation" in section 24(5) was concerned only with that provided under the 1948 Act. The Court of Appeal held that the use of the definite article ("the") in the phrase "before the residential accommodation was provided for him" was an explicit reference back to the accommodation provided under the 1948 Act already mentioned in the subsection.  Accordingly, on a literal meaning of the provision, which was in any event also consistent with the other supporting arguments made by the Secretary of State, Kent was liable to fund NA’s placement in Winchester House. 

Samantha Broadfoot appeared for the Secretary of State in the Court of Appeal. 

The judgment can be found here.