Cornwall Council, R (on the application of) v Wiltshire Council & Ors (Rev 1)

“Ordinary residence” under the National Assistance Act 1948 is a question of fact and degree. For a person lacking capacity to decide where to live, the ordinary-residence test must be adapted because voluntary adoption and settled intention cannot be applied literally. The approaches identified in R v Waltham Forest LBC, ex p. Vale remain available, but are fact-sensitive approaches rather than inflexible rules. In transition from children’s to adult services, the authority responsible under the Children Act 1989 may provide a factual starting point, but that starting point is rebuttable. A person’s family base, continuing parental relationship, actual presence, care arrangements and the temporary or settled nature of accommodation may all be relevant. The Secretary of State’s determination was lawful and fell within the range of reasonable decisions.

PH was a young adult with severe learning and physical disabilities who lacked capacity to decide where to live. Wiltshire Council had accommodated him under the Children Act 1989, first with foster carers in South Gloucestershire and later in residential homes in Somerset. His parents lived in Cornwall and maintained regular contact.

Following a dispute between the local authorities, the Secretary of State determined under section 32(3) of the National Assistance Act 1948 that PH had been ordinarily resident in Cornwall on 26 December 2004, immediately before his eighteenth birthday. Cornwall sought judicial review, arguing that the wrong legal test had been applied, that the application of R v Waltham Forest LBC, ex p. Vale was irrational, and that the relevant date was erroneous.

1. Judicial review. The court’s role was supervisory. It had to ask whether the Secretary of State applied the correct legal criteria, considered relevant matters, disregarded irrelevant matters and avoided a Wednesbury unreasonable conclusion. Once the law was correctly understood, ordinary residence remained a question of fact and degree for the decision-maker: R (Greenwich LBC) v Secretary of State for Health and Barnet LBC v Shah.
2. Need for accommodation. The duty under section 21 of the National Assistance Act 1948 arose on PH’s eighteenth birthday. Existing accommodation provided under section 23C(4)(c) of the Children Act 1989 did not remove the need for accommodation under section 21. Section 30(1) of the 1989 Act preserved duties imposed by other enactments. The Secretary of State was therefore entitled to determine ordinary residence as at the relevant date.
3. Starting point on transition. Treating Wiltshire as the factual starting point because it had been responsible under the 1989 Act was lawful. It was not an irrebuttable legal presumption. The determination expressly considered and rejected Wiltshire as PH’s ordinary residence, so any imprecision in using the word “presumption” caused no legal error.
4. Persons lacking capacity. The definition in Barnet LBC v Shah required adaptation where the person could not voluntarily adopt a residence or form a settled purpose. The two approaches in R v Waltham Forest LBC, ex p. Vale were not rules of law. They were alternative, fact-sensitive approaches involving questions of fact and degree. The first considered whether the person’s base was with a parent or guardian. The second considered the position as if the person had capacity, including physical presence and the nature and purpose of that presence, without requiring voluntary adoption.
5. Application. The Secretary of State was entitled to consider PH’s continuing relationship with his parents, their involvement in decisions about his care, his visits to Cornwall, and the family home as his base. His foster placement in South Gloucestershire was temporary because a move to Somerset had been arranged. Somerset could not be his ordinary residence because he had not yet lived there. The conclusion that PH was ordinarily resident in Cornwall was properly open to the Secretary of State.
6. Outcome. The judicial review application was dismissed.

First-instance judicial review proceedings. The Secretary of State’s determination under section 32(3) of the National Assistance Act 1948 was upheld.