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R (Cornwall Council) v SSH [2014] EWCA Civ 12, [2014] MHLO 17

(1) In deciding the ordinary residence of an adult lacking capacity the Secretary of State had erred in applying 'test 1' from the Vale case (that a person who is so severely handicapped as to be totally dependent upon a parent or guardian in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base). (2) Instead, the words 'ordinary residence' should, unless the context indicates otherwise, be given their ordinary and natural meaning. (3) There is much to be said for the court adopting in the context of severely incapacitated adults a test of ordinary residence similar to the test of habitual residence adopted for dependent children in Re A (namely where he is integrated into a social and family environment). (3) On the facts, the person was ordinarily resident in South Gloucestershire (where he lived) rather than Cornwall (where his parents lived).

Related judgments

R (Cornwall Council v SSH [2015] UKSC 46, [2015] MHLO 61

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

LOCAL AUTHORITY — Duty to provide accommodation — Incapacitated adult — “Ordinary residence” relevant when determining where duty lying — Whether physical presence relevant to such exercise — National Assistance Act 1948, ss 21, 24(1) — Children Act 1989, s 20

Regina (Cornwall Council) v Secretary of State for Health

[2014] EWCA Civ 12!; [2014] WLR (D) 80

CA: Elias, Lewison, Floyd LJJ: 18 February 2014

When resolving questions as to the “ordinary residence” of an adult man suffering from multiple complex disabilities, the test whereby a person who was so severely handicapped as to be totally dependent on a parent was in the same position as a small child and his ordinary residence was that of his parents because that was his base, was not to be followed.

The Court of Appeal so held, inter alia, when allowing the appeal of Cornwall Council from a decision of Beatson J, sitting in the Administrative Court of the Queen’s Bench Division on 21 December 2012 [2012] EWHC 3739 (Admin)!, refusing its application for judicial review of a decision of the Secretary of State for Health that Cornwall was the “ordinary residence” of P, an adult man with multiple complex disabilities, for the purpose of the statutory provisions determining which local authority should be found responsible for P’s care.

P was cared for in Wiltshire by his parents until 1991, when his parents moved to Cornwall. Wiltshire Council then provided him with accommodation under section 20 of the Children Act 1989, placing him with long-term foster carers in South Gloucestershire where he stayed until 2005 (and he had become 18 in 2004). P then moved to a care home in Somerset funded by Wiltshire Council. P’s parents were closely involved in decisions affecting him and visited him several times a year, and P would occasionally visit his parents, usually over Christmas and in the summer. Once P had become 18, Wiltshire Council contacted Cornwall Council to take over his support and accommodation pursuant to section 21 of the National Assistance Act 1948. A dispute arose between the various local authorities as to P’s “ordinary residence”. The Secretary of State, determining that issue, applied the first test from R v Waltham Forest London Borough Council, Ex p Vale The Times, 25 February 1985, viz that, where a person was so severely handicapped as to be totally dependent on a parent, such a person was in the same position as a small child and his ordinary residence was that of his parents because that was his base. He determined that P was ordinarily resident in Cornwall because his parents’ home was his base. The judge, refusing Cornwall Council’s application for judicial review, held that the approach in Ex p Vale was not inconsistent with the cases of R v London Borough Council of Barnet, Ex p Nilish Shah [1983] 2 AC 309! and Mohammed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547!, and that the Secretary of State had correctly applied the first test in Ex p Vale to the facts, and his determination that, where P’s parents’ home was his base on his eighteenth birthday, he was ordinarily resident in Cornwall was one that was properly open to him. Cornwall Council appealed.

ELIAS LJ said that, having considered authority, including A v A (Children) (Habitual Residence) [2013] 3 WLR 761!, the first test in Ex p Vale ought to be abandoned as the appropriate test to apply when considering the ordinary residence of young children, because they could not sensibly be said voluntarily to choose where they lived nor to have a subjective settled purpose with respect to it; and precisely the same difficulties arose with respect to those who were severely mentally disabled such as P. The Secretary of State had applied the Ex p Vale test without proper consideration of P’s actual place of residence and as if it were a rule of law. The first test in Ex p Vale ought not to be followed. The words “ordinary residence” should, unless the context indicated otherwise, be given their ordinary and natural meaning. The effect of applying Ex p Vale without any real regard to the actual place of residence was that P was found to be ordinarily resident in a house which had never been his residence and indeed was not a suitable place for him to reside. The occasional visit to his parents for holidays did not begin to justify a conclusion that he resided with them, let alone that it was his place of ordinary residence. The conclusion was that, at the relevant time of his eighteenth birthday, P’s ordinary residence was in South Gloucestershire.

LEWISON LJ gave a concurring judgment.

FLOYD LJ agreed with both judgments.

Appearances: David Lock QC and Hashi Mohamed (instructed by Cornwall Council Legal Department) for Cornwall Council; Deok-Joo Rhee (instructed by Treasury Solicitor) for the Secretary of State; Hilton Harrop-Griffiths (instructed by Wiltshire Council Legal Department) for Wiltshire Council, as first interested party; Sarah Hannett (instructed by South Gloucestershire Legal Department) for South Gloucestershire Legal Department, as second interested party; David Fletcher (instructed by Somerset County Council Legal Department) for Somerset County Council, as third interested party.

Reported by: Matthew Brotherton, Barrister.

© 2013. The Incorporated Council of Law Reporting for England and Wales.

External link

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ICLR

Local Govenment Lawyer, 'Supreme Court to hear key case on 'ordinary residence' in community care' (10/6/14)

Local Government Lawyer, 'Supreme Court to hear battle among councils over "ordinary residence" in care case' (17/3/15)†. The case was heard by Lady Hale, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Toulson on 18 and 19 March 2015.