R (on the application of Cornwall Council) v Secretary of State for Health & Others (1) Wiltshire Council (2) South Gloucestershire Council (3) Somerset County Council [2014] EWCA Civ 12

The appellant local authority appealed against a decision that an incapacitated person (“P”) was “ordinarily resident” in Cornwall for the purposes of section 21 and section 24(1) the National Assistance Act 1948.

P was born in 1986 with complex disabilities including cerebral palsy, epilepsy and autism.  He needed a great deal of physical care.  He was cared for by his parents until 1991, when Wiltshire Council was asked to provide accommodation for him.  He was placed with long term foster carers in South Gloucestershire but his parents continued to be involved in the decisions affecting him.  P’s parents moved to and lived in the Cornwall area and continued to have regular contact with him.

In 2005 after becoming an adult P was moved to a care home in the area of Somerset County Council which was funded by Wiltshire on a temporary basis.  This placement did not meet P’s needs and he was moved to another care home, Langley House in Somerset.  P had never lived in Cornwall, he had rarely visited save for the occasional holiday during summer and at Christmas and when his birthday fell.  He had no property there and his only link was that his parents lived there at the relevant time.  Wiltshire Council asked Cornwall Council to assume responsibility for his support and accommodation under section 21 of the National Assistance Act 1948.

In order to establish which local authority had responsibility for P the Secretary of State was asked to determine P’s ordinary residence.  The Secretary of State applied the test as set out in R v Waltham Forest London Borough Council, Ex Parte Vale [1985] QBD that where an adult so lacked capacity that he was totally dependant on his parents, their place of residence had to be taken as being the ordinary residence of their adult child.

Cornwall sought judicial review of the Secretary of State’s decision on two grounds.  First it alleged that the Secretary of State did not in fact have the power to determine the dispute at all.  Secondly it contended that even if he did have the power, he had misdirected himself in law wrongly applying the test in Vale, and had reached a perverse conclusion not properly available to him on the facts.

On the facts R v Waltham Forest London Borough Council, Ex Parte Vale [1985] QBD the decision in that case was no doubt correct.  However, the position was more complicated when the parents delegated the care of the incapacitated child to others.

The court found that the Secretary of State had applied the Vale test as if it were a rule of law without proper consideration of P’s actual place of residence.  Cornwall could not be described as P’s base.  It was not a place where P had any residence at all; it was simply a place that he occasionally visited for holidays.  His parents visited him in South Gloucestershire more frequently than he visited them in Cornwall.

The court found that the test in Vale should not be followed and that the words “ordinary residence” should be given their ordinary and natural meaning (unless the context indicated otherwise).  Where the vulnerable adult had been living in only one place for a number of years this would lead to the conclusion that this was his ordinary place of residence.

Lord Justice Elias stated that in the context of severely incapacitated adults, there was much to be said for adopting a test of ordinary residence similar to the test of habitual residence adopted for dependant children.  The ordinary residence would be the place which could properly be described as the centre or focus of the child’s social and family environment.  The place of ordinary residence may be found to be with the parents even though they spend more time with the carers.  However, there would have to be a pattern of regular living with the parents before it would be possible to describe that as the place of ordinary residence.  Applying this test, the court found that P’s closest social and family environment was in South Gloucestershire.  Therefore, the Secretary of State had misdirected himself and his decision that P was “ordinarily resident” in Cornwall could not stand.

The appeal succeeded and the court found that the place of ordinary residence at the relevant time was South Gloucestershire.

 

Comment

In training on ordinary residence, this case had caused quite a stir at the first instance level, because it was hard to credit a result which seemed to treat adults as the possessions of their parents, if they were incapacitated; life has moved on a good deal from the Vale approach since the Mental Capacity Act. Also, the outcome at the lower level would have meant that the level of involvement on the part of absent parents could have made all the difference: would being a young person’s base despite being geographically separate from where the child was fostered, require birthday cards, visits, phone calls, skyping, or what?

Another objection to the outcome was that it seemed to strain overmuch to match the thrust of the guidance issued by the Secretary of State, and that guidance, of course, has been framed by all the other decisions that department has ever had to make.

For young people, moving from accommodation as fostered children, without mental capacity into a care home, the current guidance tries to explain that it is possible for the existing arranging authority NOT to remain responsible for the funding of wherever the next residential setting needs to be. In Vale there was a gap in responsibility – the parents picked the young adult up from one place and moved her themselves to their home. In a case where a child moves seamlessly from being fostered to being provided for in an adults’ residential setting there is no gap.

If the outcome of this case is that the Secretary of State has to decide a dispute as between South Gloucestershire and Wiltshire, then that guidance might still be applied; but if the outcome is that it’s Wiltshire, so that the young person remains the responsibility of Wiltshire under the deeming provision in s24(5), then that would mean the transition part of the guidance has to be re-written – and well before the Care Bill comes in! 

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