R (on the application of Cornwall Council) v Secretary of State for Health and Somerset County Council [2015] UKSC 46

PH, a severely disabled adult lacking capacity, had lived with foster parents in South Gloucestershire from age four after being placed there by Wiltshire under the Children Act 1989. The Supreme Court held that Wiltshire, the placing authority, remained responsible for his care upon reaching majority.

Facts

PH was born in December 1986 with severe physical and learning disabilities and lacks capacity to decide where to live. In 1991, when his parents lived in Wiltshire, that authority placed him with foster parents (Mr and Mrs B) in South Gloucestershire under section 20 of the Children Act 1989. Later in 1991, PH’s family moved to Cornwall. PH remained with his foster parents until shortly after his 18th birthday in December 2004, when he was moved to a care home in Somerset (first Blackberry Hill, then Langley House). PH stayed with his parents in Cornwall occasionally for holidays and maintained telephone contact, while his foster parents continued to write to him.

A dispute arose between Wiltshire, Cornwall and South Gloucestershire as to which authority was responsible for funding PH’s adult care under section 21 of the National Assistance Act 1948. The Secretary of State, exercising his determination power under section 32(3), held that PH was ordinarily resident in Cornwall on 26 December 2004. Beatson J upheld that decision; the Court of Appeal set it aside and held that South Gloucestershire was responsible. The Secretary of State and Somerset appealed.

Issues

The principal issue was where PH was “ordinarily resident” immediately before his placement in Somerset, for the purposes of sections 24(1) and 24(5) of the National Assistance Act 1948. This required the court to consider:

• The correctness of the so-called “Vale tests 1 and 2” derived from R v Waltham Forest, Ex p Vale, particularly when applied to those lacking capacity;
• Whether residence in accommodation provided under the Children Act 1989 should count as ordinary residence for the purposes of the 1948 Act, given the disregard in section 105(6) of the 1989 Act;
• Preliminary jurisdictional challenges raised by Cornwall regarding the Secretary of State’s power to determine the dispute and Wiltshire’s status.

Arguments

The Secretary of State and Somerset argued that PH’s ordinary residence should reflect “the seat of the person’s decision-making power” given his incapacity, focusing on his relationship with his parents in Cornwall as his “base”. South Gloucestershire argued, more explicitly, that one should look to the ordinary residence of the decision-maker for an incapacitated person.

Cornwall argued that PH had no real connection with Cornwall beyond occasional visits and that South Gloucestershire, where he had lived for 13 years, was his place of ordinary residence. Cornwall additionally raised preliminary objections: that section 21 of the 1948 Act was not engaged because section 23C of the 1989 Act could have provided assistance, ousting the Secretary of State’s jurisdiction; and that Wiltshire itself had no power to incur expenditure under the 1948 Act.

Judgment

Lord Carnwath, with whom Lady Hale, Lord Hughes and Lord Toulson agreed, allowed the appeals and held that PH was ordinarily resident in Wiltshire.

Preliminary issues

The court rejected Cornwall’s jurisdictional challenges. Part III of the 1948 Act provides the exclusive statutory basis for long-term care for adults; section 23C of the 1989 Act is transitional in nature and does not displace section 21. Section 32 should also be read broadly as to timing, permitting the Secretary of State to resolve disputes arising in advance of the 1948 Act duties taking effect.

The Vale tests

Lord Carnwath held that the so-called “Vale tests 1 and 2” had been given undue weight in the Secretary of State’s guidance and determination. Taylor J in Vale had not laid down two separate legal tests; his two approaches were complementary applications of the Shah test. The decision-maker’s reliance on PH’s “base” with his parents in Cornwall was misconceived: “the seat of the decision-making power in relation to a mentally disabled adult is the authority making the placement”, not the parents.

Choice between South Gloucestershire and Wiltshire

Although applying Shah unqualified might suggest South Gloucestershire (where PH had lived contentedly for 14 years), this would run counter to statutory policy. The 1989 Act, through section 105(6)(c), disregards periods of local authority accommodation when determining a child’s ordinary residence. To treat that same placement as establishing ordinary residence in South Gloucestershire for the purposes of the 1948 Act would create a “hiatus” and an “unnecessary and avoidable mismatch”. Lord Carnwath reasoned that the purpose of section 24 was “purely ‘administrative and fiscal'” and the statutory context required that the legal characteristics of a 1989 Act placement be respected when applying the 1948 Act. Accordingly, PH remained ordinarily resident in Wiltshire, the placing authority, throughout the period up to his 18th birthday.

Dissent

Lord Wilson dissented. He considered that on the date in question PH had no meaningful connection with Wiltshire whatsoever, having not lived there for 13 years and with no family remaining there. He emphasised that Parliament had chosen not to extend the disregard in section 24(5) to cover prior placements under the 1989 Act and that the courts should not legislate. Applying Shah, with “voluntarily” modified to “contentedly” to accommodate PH’s incapacity, the only proper conclusion was that PH was ordinarily resident in South Gloucestershire, where he was integrated in his social and family environment.

Implications

The decision establishes that, for the purposes of section 24(5) of the National Assistance Act 1948, a young person who has been placed by one local authority in the area of another under section 20 of the Children Act 1989 does not, on reaching majority, become ordinarily resident in the placing area. Instead, the placing authority retains responsibility on the transition to adult services. The majority grounded this in the parallel statutory policy that an authority should not be able to “export” responsibility for those in its care by placing them elsewhere.

The judgment significantly qualifies the so-called “Vale tests”, which had featured prominently in the Secretary of State’s guidance. The “base” concept derived from Lord Denning MR in In re P (GE) should not be detached from actual physical residence, and decisions on ordinary residence for incapacitated adults must focus on the residence of the subject, not on the residence of those making decisions on their behalf.

The decision matters principally to local authorities responsible for adult social care, particularly in relation to disabled young people transitioning from child to adult services, and to those providing specialist out-of-area placements. The court was concerned that a contrary result would deter authorities from accepting such placements for fear of long-term financial burdens. The case also illustrates that the meaning of “ordinary residence” is strongly context-dependent, and that the Shah test may require modification where it produces results inconsistent with the statutory scheme. The relevant statutory framework has since been replaced in England by the Care Act 2014, but the principles concerning the interaction between child and adult social care residence remain pertinent.

Verdict: The appeals were allowed. The Supreme Court (by a majority of 4 to 1, Lord Wilson dissenting) held that PH was ordinarily resident in Wiltshire immediately before his placement in Somerset, and accordingly Wiltshire is the authority responsible for his accommodation under the National Assistance Act 1948. References to South Gloucestershire in the Court of Appeal’s declaration were substituted with references to Wiltshire.

Source: R (on the application of Cornwall Council) v Secretary of State for Health and Somerset County Council [2015] UKSC 46