Cornwall Council, R (on the application of) v Secretary of State for Health & Ors

For a person lacking capacity, ordinary residence cannot be fixed by treating the residence of parents or guardians as decisive. The voluntary settled-purpose approach associated with [1983] A.C.309 and the first Vale test should not be applied mechanically. The decision-maker must give substantial weight to where the person actually lives. A parental relationship remains relevant, but occasional holidays, proximity and parental involvement do not make the parents’ home the person’s ordinary residence without a regular pattern of living there. Transitional assistance under the Children Act 1989 may supplement, but does not replace, the wider care duties under the National Assistance Act 1948.

Philip was severely disabled, lacked capacity to decide where to live and had lived with foster carers in South Gloucestershire for almost 13 years. His parents lived in Cornwall and maintained regular contact with him, but he had never lived in Cornwall and visited only occasionally. Wiltshire had provided his accommodation under the Children Act 1989 while he was a child. Following his eighteenth birthday, the Secretary of State determined under section 32(3) of the National Assistance Act 1948 that Philip was ordinarily resident in Cornwall, making Cornwall responsible for the cost of his care. Beatson J dismissed Cornwall’s judicial review claim. The appeal concerned the Secretary of State’s jurisdiction and the proper approach to ordinary residence.

The Court of Appeal, in the judgment of Elias LJ with which Lewison LJ and Floyd LJ agreed, allowed the appeal and declared that Philip’s ordinary residence at the relevant time was South Gloucestershire.

1. Jurisdiction. Section 21 of the National Assistance Act 1948 was a backstop provision, but its scope was wider than the assistance available under section 23C(4)(c) of the Children Act 1989. The Children Act duties were designed to provide transitional support towards adulthood. They might supplement National Assistance Act care, but were not coterminous with it. The decision in R(O) v Barking and Dagenham LBC [2011] 1 WLR 1283 concerned the narrower power to provide accommodation and did not support a power to provide the full range of community-care services.
2. Because the National Assistance Act duty was engaged after Philip’s eighteenth birthday, there was a live question of ordinary residence which the Secretary of State could determine under section 32(3). The Children Act deeming provision preserved Wiltshire’s responsibility for Children Act purposes only and did not determine ordinary residence under the National Assistance Act.
3. Ordinary residence. The Shah approach, based on voluntary adoption of a settled abode, was unsuitable for a person whose severe mental disability prevented meaningful choice. The first test in R v Waltham Forest ex p. Vale, under which an incapacitated person’s ordinary residence was treated as that of the parents, ought not to be followed. Ordinary residence retained its ordinary and natural meaning, and actual residence was a critical consideration. Where a vulnerable adult had lived in one place for many years, that fact would almost inevitably determine the result.
4. Parental links, involvement in care decisions and the emotional importance of the family remained relevant. They could not, however, make Cornwall Philip’s ordinary residence when he had never lived there and visited only for holidays. His long-standing residence with the foster carers in South Gloucestershire was not rendered temporary by the anticipated future move to Somerset.
5. Elias LJ added, without having heard specific argument on the point, that an analogous approach might focus on the centre or focus of the person’s social and family environment, similar to the approach in Re A [2013] UKSC 60. This was not necessary to the result. On the facts, South Gloucestershire was the place where Philip was socially and emotionally integrated and where he lived day by day.

1. Court of Appeal (Civil Division) — [2014] EWCA Civ 12: appeal allowed; South Gloucestershire declared to be Philip’s ordinary residence at the relevant time.
2. High Court of Justice, Administrative Court — Beatson J dismissed Cornwall Council’s judicial review claim.
3. Secretary of State for Health — determined under section 32(3) of the National Assistance Act 1948 that Cornwall was Philip’s ordinary residence.