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Public Policy drives Supreme Court's interpretation of 'ordinary residence' in Cornwall case

The Supreme Court has finally today (8 July 2015) handed down its long awaited judgment in the Cornwall case (R (on the application of Cornwall Council) v Secretary of State for Health [2015] UKSC 46). It found, by a majority of 4-1, and possibly to the surprise of all parties, none of whom contended for this result, that Wiltshire was PH's place of ordinary residence. Wiltshire, practitioners will remember, was the local authority who had placed PH in South Gloucestershire pursuant to its Children Act duties while PH was a minor and where he had not only not lived for 14 years but had no links to, his parents having since moved to Cornwall.

The question before the court was, on PH turning 18 and thus responsibility for meeting his care and support needs moving from the Children Act to the National Assistance Act 1948, which local authority was responsible for him – Cornwall where his parents lived? Or South Gloucestershire where he had lived happily for 14 years? Or Wiltshire who had placed him in South Gloucestershire?

The court held that for reasons of public policy – that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it – when a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, he is to be regarded on reaching that age as ordinarily resident in the area of X for the purposes of the 1948 Act, with the result that responsibility for his care as an adult remains with X. To hold otherwise would run counter to the policy discernible in both Acts that the ordinary residence of a person provided with accommodation should not be affected for the purposes of an authority's responsibilities by the location of that person's placement.

Lord Wilson, in a strong dissenting judgment, made clear he considered that the law, as it stands clearly compels PH's place of ordinary residence to be South Gloucestershire, and that Lord Carnworth's judgment (with whom Lady Hale, Lord Hughes and Lord Toulson agreed) meant that the court was stepping into the legislative arena: 'I am not a legislator. Nor, with respect, are my colleagues.'

The court also stated that the two approaches in R v Waltham Forest London Borough Council, Ex p Vale (unreported, 11 February 1985) – what practitioners know as the Vale 1 and Vale 2 test – should not be treated as separate legal tests. They are 'complementary, common-sense approaches to the application of the Shah test to a person unable to make decisions for herself; that is, to the single question whether her period of actual residence with her parents was sufficiently "settled" to amount to ordinary residence.'

What next for Local Authorities?

Local Authorities will want to review where responsibility lies in cases where young people lacking capacity have been placed in their area as minors by another local authority and are being provided with accommodation by them as adults as, although the evidence presented to the court was that such cases are relatively few, in the light of their specialised needs, the cost of maintaining them indefinitely is very high.

More generally those local authorities that perceive themselves as areas where persons lacking capacity have have historically been placed by other local authorities (not in Part 3 NAA 1948 accommodation or in relevant accommodation under the Care Act 2014) may wish to examine whether there is also a public policy argument to be made that such persons retain the ordinary residence of the placing authority.

Click here to see the full judgment.