R v Secretary of State for Health

For allocating responsibility under the National Assistance Act 1948, ordinary residence concerns the individual’s own residence and the nature of that residence. It cannot be replaced, for an adult lacking capacity, by the residence of a parent or other decision-maker.

Where a child was placed outside an authority’s area under the Children Act 1989, that placement should not transfer fiscal responsibility to the receiving authority when adult care begins. The placement’s statutory character must inform section 24 of the 1948 Act. The placing authority therefore remains responsible unless ordinary residence changes on some independent basis.

PH, who had severe physical and learning disabilities and lacked capacity to decide where to live, was accommodated by Wiltshire from childhood. Wiltshire placed him with foster parents in South Gloucestershire. His parents later moved to Cornwall. Upon attaining adulthood, he moved to residential accommodation in Somerset.

The Secretary of State determined under section 32(3) of the National Assistance Act 1948 that PH had been ordinarily resident in Cornwall immediately before adult accommodation was provided. Beatson J upheld that determination. The Court of Appeal, [2014] EWCA Civ 12, set it aside and held that South Gloucestershire was responsible.

The Secretary of State and Somerset appealed. The central questions were how ordinary residence should be identified for an adult lacking capacity, whether the childhood placement affected ordinary residence upon transition to adult services, and whether the Secretary of State had jurisdiction to determine the dispute.

1. Appeals allowed by a majority. Lord Carnwath, with whom Lady Hale, Lord Hughes and Lord Toulson agreed, held that the Secretary of State’s selection of Cornwall could not stand. His reliance on PH’s parental home as a “base” wrongly substituted PH’s relationship with his parents, or the supposed location of decision-making power, for PH’s own residence and the nature of that residence.
2. The ordinary meaning stated in R v Barnet LBC, Ex p Shah [1983] AC 309 focuses on an abode adopted as part of the regular order of life for settled purposes. In the case of a person lacking capacity, the approaches in R v Waltham Forest LBC, Ex p Vale were complementary ways of applying that test to actual residence. They were not separate legal tests permitting ordinary residence to be equated generally with the residence of parents or decision-makers. The precise status of PH’s foster parents was therefore irrelevant to whether his residence with them was settled.
3. South Gloucestershire was nevertheless not responsible. Section 24 of the National Assistance Act 1948 had to be construed in its administrative and fiscal context. PH’s residence in South Gloucestershire resulted from a placement made and funded by Wiltshire under the Children Act 1989. That statutory scheme treated such a placement as leaving ordinary residence unaffected. Treating the same placement as transferring responsibility upon adulthood would create an avoidable mismatch between the two schemes and undermine their common policy against exporting responsibility through an out-of-area placement.
4. PH consequently remained ordinarily resident in Wiltshire for fiscal and administrative purposes until adulthood. The Court of Appeal’s declaration was varied by substituting Wiltshire for South Gloucestershire.
5. The Secretary of State had jurisdiction. The transitional assistance available under section 23C of the 1989 Act did not displace the distinct, long-term regime under section 21 of the 1948 Act. Section 32 was broad enough to permit advance resolution of an identified dispute so that the correct authority could assume responsibility from the outset.
6. Lord Wilson dissented. He considered that policy could not extend a statutory disregard which Parliament had not enacted. Applying the established meaning of ordinary residence, adapted for incapacity, PH was ordinarily resident in South Gloucestershire, where he had lived contentedly and as part of the settled order of his life for about 13 years. He would have dismissed both appeals.

1. United Kingdom Supreme Court: By a majority of four to one, allowed the Secretary of State’s and Somerset’s appeals and substituted Wiltshire for South Gloucestershire in the declaration.
2. Court of Appeal: [2014] EWCA Civ 12 set aside the Secretary of State’s determination and held that South Gloucestershire was responsible.
3. High Court: Beatson J dismissed Cornwall’s judicial review claim and upheld the Secretary of State’s determination that Cornwall was responsible.