Ordinary Residence in Cornwall: what can be salvaged?

The issue of ordinary residence is both a complex and confusing area of law. David Owens and Ruth Atkinson-Wilks examine the recent Supreme Court case.

03/02/2016

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David Owens

Partner

The issue of ordinary residence is both a complex and confusing area of law. This is nowhere more evidenced than in the recent case of R (Cornwall Council) v SSH [2015] UKSC 46. The facts of Cornwall were quite straightforward; P had severe physical and learning disabilities and was without speech. He lacked capacity to decide for himself where to live. Until age 4, P lived with his parents in Wiltshire. From age 4 to 18, P lived with foster parents in South Gloucestershire but maintained contact with his natural parents who lived in Cornwall. Upon turning 18, P was moved to a care home within the Somerset area. The court was asked to decide which local authority was financially responsible for his care.

There were three different hearings of Cornwall through the full hierarchy of the court system. In each hearing, the court reached a different ruling on where P was ordinary resident and therefore which local authority was responsible for his care.

First, the High Court upheld the Secretary of State's ruling that Cornwall was the responsible authority as P's natural parents lived there and P often visited them and occasionally stayed with them when he was in foster care. The Court of Appeal took a different view however and instead ruled that South Gloucestershire was the responsible authority as P had lived there for a long time with his foster parents. Lastly, the Supreme Court (by a majority of 4-1) considered both court's arguments but chose to reach the completely different conclusion that Wiltshire was the responsible authority as this was the initial placing authority when P had been a child and P had been in continuous placement since this point.

Given this turmoil, the crucial question is whether Cornwall has established any principles that clarify the law regarding ordinary residence. This article argues that, although much of the Court's reasoning in Cornwall was largely based on the specific facts of the case, there are two key principles to be salvaged from the judgment which can be used in the future to help identify a person's ordinary residence. Given the case was decided on the law prior to the coming into force of the Care Act 2014 ("Care Act") this paper will also consider how far the changes in the ordinary residence test are affected.

1. The redefinition of the Vale test as an application of the Shah test

Prior to Cornwall, the test for ordinary residence depended on whether the person receiving care and support lacked capacity to decide where to live. If a person had capacity, the test to be applied was that set out in R v Barnet LBC, Ex p Shah [1983] AC 309. The Shah test states "ordinarily resident refers to a man's abode in a particular or place or country that he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or lf long duration."

If, however, the person receiving care and support was not deemed to have capacity, the relevant test derived from R v Waltham Forest, Ex p Vale (unreported, 11 February 1985). The Vale test, as interpreted subsequently and, in particular, by the Secretary of State's guidance at the time, is two-fold. Part 1 states: "where a person is so mentally handicapped as to be totally dependent on a parent or guardian, she is in the same position as a small child. Her ordinary residence is that of her parents because that is her base." Part 2, which applies if Part 1 is not appropriate (for example if the parents are dead), considers the person's ordinary residence as if they had capacity and should look at physical presences and the nature and purpose of that presence, as set out in Shah.

The Supreme Court in Cornwall criticised this approach and examined the judgement in Vale in more detail. It should be noted they did not disagree with the conclusion in Vale, and essentially regarded it as an application of the Shah tests. They held that the weight previously given to these tests, both by the Courts and by the Secretary of State's guidance, was "misplaced." This has the consequence that, where an adult lacks capacity to decide his place of ordinary residence, it should not be determined by reference to his parent's base, but rather that what the Judge in Vale was doing, although perhaps inelegantly expressed, was to answer the question of how you establish the settled intention element of the Shah test when the individual has no capacity to hold that opinion. In this regard, looking at the Parents intentions as de facto guardians was one approach, and in the alternative looking at the position as if the individual had capacity to see if a determination of settled intention could be inferred in the circumstances.

In summary, at paragraph 47, Lord Carnwath states that the Vale tests should not be "treated as separate legal tests" as "they were complementary, common-sense approaches to the application of the Shah test to a person unable to make a decision for herself."

Applying this approach in both the Majority and dissenting views, the Supreme Court would have agreed with the Court of Appeal in saying that on the facts the parents and foster parents views of where PH was settled would have been South Gloucestershire. However the majority went on to differ from the Court of Appeal by applying the deeming provisions in the Children Act.

2. That the deeming provisions in the Children Act carry over for the purposes of the National Assistance act and trump the Shah test

In addition to redefining the Vale tests, the court also upheld the importance of the deeming provisions in the Children Act 1989 and the National Assistance Act 1948. It is, in general, a truism that the legislation can override its own or common law tests as to ordinary residence for particular or general purposes.

The deeming provisions in these Acts seek to leave the ordinary residence of a person, who was provided accommodation by a local authority, unaffected by the location of the particular placement. For example, if a person X is housed in the geographic area of Local Authority A by Local Authority B, person X will be deemed to be resident in Local Authority B. The underlying principle of these deeming provisions is to prevent local authorities from exporting their responsibilities to other local authorities. The narrow interpretative quest before the court was whether for the purposes of a determination under the National Assistance act, the deeming provisions in the Children Act applied, and they held that they did.

They supported this on policy grounds; that to apply Shah, without qualification, could disrupt these deeming provisions and such disruption would be undesirable and could have long term effects. For example, if Shah took precedent over the deeming provisions, a child, placed by authority A in the area of authority B under the 1989 Act, who was deemed ordinarily resident in the area of authority A under the 1989 Act, would be regarded as becoming ordinarily resident in area B when they reach 18 for the purpose of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y.

The long term consequences of such a ruling could have adverse effects; it may constrain the willingness of local authorities with specialist units from accepting children from the area of another local authority due to the long-term financial burden that could potentially follow when the child reached 18.

The Care Act makes some changes to the deeming provisions to widen the ambit of them to include placements in shared lives or supported living accommodation as well as placements in care homes as situations where the placing authority will retain responsibility, and also placements made under Section 117 of the Mental Health Act 1983. The Care Act does not however, directly address the point on which the Supreme Court ruled in relation to the National Assistance Act. Despite this, it is our view that the approach of the Supreme Court would be likely to be the same under the new Legislation; that is to say that where deeming provisions under the Children Act apply, they will continue to apply to determine the responsible authority on transition to adult care.

Conclusion

The case of Cornwall held great promise; many practitioners felt that this might finally be the Supreme Court's opportunity to tidy and clarify the law surrounding ordinary residence. Disappointingly, however, this proved not to be the case and instead, Cornwall has left legal practitioners scrabbling around for any clear principles regarding how the tests for ordinary residence should be applied and how the deeming provisions should work in practice. This article claims to have salvaged two key principles which will likely lead to subtle re-drafts of the Secretary of State Guidance on Ordinary Residence and also amendments to the the Care Act 2014 Guidance.

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