Text:ICLR [2015] WLR(D) 298

LOCAL GOVERNMENT — Community Care Services — Provision of accommodation — Incapacitated person reaching age of 18 having been in care of local authority — Dispute as to which local authority responsible for providing his accommodation as adult — Secretary of State determining incapacitated adult’s place of “ordinary residence” — Whether Secretary of State empowered to make determination — Whether ordinary residence to be determined by reference to place of parents’ ordinary residence — Principles applicable — National Assistance Act 1948 (as amended by Local Governement 1972, s 195(6), Sch 23, para 2(1), Children Act 1989, s 108(5), Sch 13, para 11(1), National Health Service and Community Care Act 1990,,s 42(1)(a) and Health and Social Care Act 2008, s 148(2)), ss 21, 24 — Children Act 1989 (as amended by Children Leaving Home Care) Act 2000, s 2(4)) ss 20, 23C(4)(c)

Regina (Cornwall Council and another) v Secretary of State for Health

[2015] UKSC 46^M; [2015] WLR (D) 298

SC:: Baroness Hale of Richmond DPSC, Lord Wilson, Lord Carnwath, Lord Hughes, Lord Toulson JJSC: 8 July 2013

In determining the ordinary residence of an adult, who lacked mental capacity to choose where to live, it was incorrect to apply a test that by reason of such incapacity he was in the same position as a small child and that his ordinary residence was that of his parents because that was his base.

The Supreme Court so stated when allowing, Lord Wilson JSC dissenting, appeals by the Secretary of State for Health and Somerset County Council from the Court of Appeal (Elias, Lewison and Floyd LJJ) [2014] EWCA Civ 12^M, [2014] 1 WLR 3408^B, [2014] WLR (D) 80 which on 18 February 2014 had allowed an appeal by the claimant, Cornwall Council, from Beatson J who, in judicial review proceedings brought by the claimant, had upheld the determination of the Secretary of State that for purposes of financial provision for the continuing care into adulthood of P, a mentally incapacitated adult, he was ordinarily resident with his family in Cornwall. The Court of Appeal had set aside the judge’s decision and declared that P was ordinarily resident in South Gloucestershire where he had been in foster care during his minority.

P had been cared for by his parents in Wiltshire until 1991 when they had moved to Cornwall. He had then been placed by Wiltshire Council, pursuant to section 20 of the Children Act 1989, with foster parents in South Gloucestershire where he had remained until his majority. During his minority his parents had frequently visited him and he briefly stayed with them in Cornwall. On his majority he had been placed in a care home in Somerset by Wiltshire Council, which funded his care. Following a dispute between the local authorities as to which authority should fund P’s care, based on his ordinary residence under sections 21 and 24 of the National Assistance Act 1948, as amended, the Secretary of State determined that issue, by reference to the first test in R v Waltham Forest London Borough Council, Ex p Vale, The Times, 25 February 1985, namely, that where, by reason of mental incapacity, the person was so severely handicapped as to be totally dependent on a parent, such a person was in the position of a small child and his ordinary residence was that of his parents because that was his base. The Secretary of State concluded, on that test, that P was ordinarily resident in Cornwall.

LORD CARNWATH JSC, with whom BARONESS HALE OF RICHMOND DPSC, LORD HUGHES and LORD TOULSON JJSC agreed, said that in selecting Cornwall the decision-maker had started, not from an assessment of the duration and quality of P’s actual residence in any of the competing areas, but from an attempt to ascertain his “base” by reference to his family relationships. As the Court of Appeal had found, such reasoning could not be supported. There was no suggestion that his brief visits to his parents could in themselves amount to ordinary residence. Where a person was unable through mental incapacity to decide his place of ordinary residence for himself, it was not within the statutory language to have regard to the ordinary residence of those making decisions for him. It was inappropriate to seek to establish a person’s “base” by reference to the ordinary residence of his parents. The test, relied on as deriving from the Vale case, depended on a misunderstanding of the judgment in that case which related to its unusual facts. The policy of both the 1989 Act and the 1948 Act was to leave the ordinary residence of a person, who was provided with accommodation by an authority, unaffected by the location of the particular placement so as to prevent the authority exporting its responsibilities. Section 24 of the 1948 Act, as was the case with the 1989 Act, was purely administrative and fiscal, allocating responsibility as between authorities without affecting the rights of the person concerned. It was therefore incorrect to regard Wiltshire’s placement of P in South Gloucestershire under the 1989 Act as creating any change in his ordinary residence. Throughout his minority he had remained where he had been placed by Wiltshire under arrangements made by it for which it had paid. His ordinary residence therefore continued there, regardless of where the authority decided he should live. It was therefore for Wiltshire to retain indefinite responsibility for P.

LORD WILSON JSC delivered a dissenting judgment in which he concluded that South Gloucestershire represented the abode which P had adopted for settled purposes as part of the regular order of his life for the time being. He was very happy and settled in his foster home there; had he the capacity, one might confidently infer that he would have adopted his abode there voluntarily. In the light of his incapacity the context required a modest replacement of “voluntarily” with “contentedly”. On that basis, his ordinary residence in South Gloucestershire was again established.

Appearances: Clive Sheldon QC and Deok Joo Rhee (instructed by Treasury Solicitor) for the Secretary of State; David Fletcher (instructed by Head of Legal Services, Somerset County Council, Taunton) for Somerset County Council, as an interested party; Hilton Harrop–Griffiths QC (instructed by Associate Director, Legal and Governance, Wiltshire Council, Trowbridge) for Wiltshire Council, as an interested party; Helen Mountfield QC, Sarah Hannett and Tamara Jaber (instructed by Head of Legal and Democratic Services, South Gloucestershire Council, Thornbury) for South Gloucestershire Council, as an interested party; David Lock QC and Charles Banner (instructed by Head of Legal Procurement Sevices, Cornwall Council, Truro) for Cornwall Council.

Reported by: Diana Procter, Barrister.