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

"PH has severe physical and learning disabilities and is without speech. He lacks capacity to decide for himself where to live. Since the age of four he has received accommodation and support at public expense. Until his majority in December 2004, he was living with foster parents in South Gloucestershire. Since then he has lived in two care homes in the Somerset area. There is no dispute about his entitlement to that support, initially under the Children Act 1989, and since his majority under the National Assistance Act 1948. The issue is: which authority should be responsible? This depends, under sections 24(1) and (5) of the 1948 Act, on, where immediately before his placement in Somerset, he was "ordinarily resident". There are three possible contenders: Wiltshire, as the authority for the area where he was living with his family when he first went into care, and which remained responsible for him under the 1948 Act; Cornwall, where his family have lived since 1991; or South Gloucestershire, where he lived with his foster parents from the age of four until his move to Somerset. ... Although none of the other authorities has argued that Wiltshire should be responsible, the court indicated at the beginning of the hearing that this possibility should not be excluded from consideration. ... In a case where the person concerned was at the relevant time living in accommodation in which he had been placed by a local authority under the 1989 Act, it would be artificial to ignore the nature of such a placement in that parallel statutory context. He was living for the time being in a place determined, not by his own settled intention, but by the responsible local authority solely for the purpose of fulfilling its statutory duties. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday. On this analysis it follows that PH's placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached 18 he remained continuously where he was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and "swings and roundabouts" may be unavoidable."

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 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!; [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!, [2014] 1 WLR 3408!, [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.

© 2015. The Incorporated Council of Law Reporting for England and Wales.

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2016 are available here: MHLR 2016.

The ordinary residence of an adult without capacity who had been accommodated in specialist foster care during his childhood - R (Cornwall Council) v Secretary of State for Health; R (Cornwall Council) v Somerset County Council – [2016] MHLR 164

Points Arising: Decisions by the Secretary of State as to the “ordinary residence” of a person accommodated under the National Assistance Act 1948 involve factual judgements and so can be challenged on traditional judicial review grounds.

The ordinary residence of an adult without capacity who had been accommodated in specialist foster care during his childhood does not turn on the residence of the person’s parents, and is to be does not turn on where the person is placed.

Facts and Outcome: From the age of 4, PH was placed in foster care in light of his severe physical and learning disabilities. He lived in Wiltshire with his parents at the time of his placement, which was in South Gloucestershire (paid for by Wiltshire) and was made under the Children Act 1989. When PH became an adult, specialist accommodation in Somerset was arranged for him, and the question was which local authority was responsible. PH’s parents, who remained involved were by then in Cornwall: the Secretary of State determined that PH’ base remained with his parents and so Cornwall was responsible. The Court of Appeal ruled that South Gloucestershire was responsible. The Supreme Court determined that as the placement in South Gloucestershire was by virtue of the Children Act 1989, it did not change his ordinary residence; that his residence was not that of his parents but of the local authority that made decisions, which remained Wiltshire.

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