JUDGMENT
R (on the application of Cornwall Council)
(Respondent) v Secretary of State for Health
(Appellant)
R (on the application of Cornwall Council)
(Respondent) v Somerset County Council
(Appellant)
before
Lady Hale, Deputy President
Lord Wilson
Lord Carnwath
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
8 July 2015
Heard on 18 and 19 March 2015
Appellant (Secretary of
State for Health)
Respondent (Cornwall
Council)
Clive Sheldon QC David Lock QC
Deok
-Joo Rhee Charles Banner
(Instructed by
Government Legal
Department
)
(Instructed by Cornwall
Council Legal Services
)
Appellant
/Intervener (Somerset
County Council)
David Fletcher
(Instructed by Somerset
County Council Legal
Services Department)
Intervener (South
Gloucestershire Council) Helen Mountfield QC
Sarah Hannett
Tamara Jaber
(Instructed by South
Gloucestershire Council
Legal Services
)
Intervener (Wiltshire
Council)
Hilton Harrop
-Griffiths
(Instructed by Wiltshire
Council Legal Services
)
Page 2
LORD CARNWATH: (with whom Lady Hale, Lord Hughes and Lord
Toulson agree)
Introduction
1. PH has severe physical and learning disabilities and is without speech. He
lacks capacity to decide for himself where to live. Since the age of four he has
received accommodation and support at public expense. Until his majority in
December 2004, he was living with foster parents in South Gloucestershire. Since
then he has lived in two care homes in the Somerset area. There is no dispute about
his entitlement to that support, initially under the Children Act 1989, and since his
majority under the National Assistance Act 1948. The issue is: which authority
should be responsible?
2. This depends, under sections 24(1) and (5) of the 1948 Act, on, where
immediately before his placement in Somerset, he was “ordinarily resident”. There
are three possible contenders: Wiltshire, as the authority for the area where he was
living with his family when he first went into care, and which remained responsible
for him under the 1948 Act; Cornwall, where his family have lived since 1991; or
South Gloucestershire, where he lived with his foster parents from the age of four
until his move to Somerset. The Secretary of State, acting under section 32 of the
1948 Act, decided that Cornwall were responsible. In doing so, he followed the
approach of his own published guidance on the determination of ordinary residence,
which drew on two principal authorities R v Barnet LBC, Ex p Shah [1983] AC 309,
and R v Waltham Forest, Ex p Vale (unreported, 11 February 1985). The latter is the
source of what have become known as “Vale tests 1 and 2” (described at paras 45-
46 below), the correctness of which is in issue in this appeal.
3. In judicial review proceedings brought by Cornwall, the Secretary of State’s
decision was upheld in the High Court (Beatson J), but set aside by the Court of
Appeal, who held that South Gloucestershire were responsible. The Secretary of
State and Somerset have appeals with the permission of this court. The appeals are
supported by South Gloucestershire and Wiltshire, but opposed by Cornwall.
Cornwall also disputes the Secretary of State’s jurisdiction to make the
determination. Although none of the other authorities has argued that Wiltshire
should be responsible, the court indicated at the beginning of the hearing that this
possibility should not be excluded from consideration.
4. It is regrettable that in this way so much public expenditure has been incurred
on legal proceedings. However, the amounts involved in caring for PH and others
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like him are substantial (some £80,000 per year, we were told). The legal issues are
of general importance, and far from straightforward.
The legislation
The Children Act 1989 Part III
5. Part III of the 1989 Act imposes duties on local authorities to provide support
for children and their families. By section 30(1), nothing in this Part of the 1989 Act
“shall affect any duty imposed on a local authority by or under any other enactment”.
Section 17 is a general duty of authorities to safeguard and promote the welfare of
children in need who are in their area. Section 20 deals with provision of
accommodation. By section 20(1), every local authority is required to provide
accommodation “for any child in need within their area” who appears to them to
require accommodation as a result (inter alia) of –
“(c) the person who has been caring for him being prevented (whether
or not permanently, and for whatever reason) from providing him with
suitable accommodation or care.”
By section 22 the local authority have a duty to promote and safeguard the welfare
of a child who is provided with accommodation under section 20 (and is thus
“looked after” by them). One of the ways in which the necessary accommodation
and maintenance can be provided is by placing the child in foster care (section 22C).
6. Although under the 1989 Act the primary duty lies with the authority in
whose area the child happens to be, “ordinary residence” also has a part to play. By
section 20(2), where a local authority provides accommodation under subsection (1)
for a child who is “ordinarily resident” in the area of another local authority, that
other local authority may following notification “take over” the provision of
accommodation for the child. Section 29 provides for recoupment of costs. By
section 29(7), where a local authority provide accommodation under section 20(1)
for a child who, immediately before they began to look after him, was “ordinarily
resident” within the area of another local authority, they may recover from that other
authority the reasonable expenses of accommodation and maintenance. By section
30(2) any question arising under these provisions as to the ordinary residence of a
child is to be determined by agreement between the local authorities or, in default
of agreement, by the Secretary of State. By section 105(6):
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“In determining the ‘ordinary residence’ of a child for any purpose of
this Act, there shall be disregarded any period in which he lives in any
place –
…
(c) while he is being provided with accommodation by or
on behalf of a local authority.”
7. Under section 23C the authority’s duties to children maintained under the
1989 Act (referred to as “former relevant children”) continue to a limited extent after
majority, generally until the age of 21 (section 23C(6)). The authority have a
continuing duty to provide for such a child various specific forms of support (not
relevant in this case) and (by section 23C(4)(c)) “other assistance, to the extent that
his welfare requires it …”. They should also have prepared a “pathway plan”
indicating the support to be provided (sections 22B, 22E).
National Assistance Act 1948
8. Section 21 of the NAA provides:
“A local authority may with the approval of the Secretary of State, and
to such extent as he may direct shall, make arrangements for providing
…
(a) residential accommodation for persons aged eighteen or
over who by reason of age, illness, disability or any other
circumstances are in need of care and attention which is not
otherwise available to them.”
By subsection (5) references to accommodation are references to accommodation
provided under this and the five next following sections, and include references to
board and other services, amenities and requisites provided in connection with the
accommodation. By subsection (8):
“Nothing in this section shall authorise or require a local authority to
make any provision authorised or required to be made … by or under
any enactment not contained in this Part of this Act …”
Page 5
9. By section 24(1) the duty falls generally on the authority in whose area the
person is “ordinarily resident”. Section 24(3) enables an authority to provide
accommodation to someone urgently in need of it even though not ordinarily
resident in the area. By section 24(5):
“Where a person is provided with residential accommodation under this
Part of this Act, he shall be deemed for the purposes of this Act to
continue to be ordinarily resident in the area in which he was ordinarily
resident immediately before the residential accommodation was
provided for him.”
By section 29(1) a local authority may, and shall if directed, make arrangements for
promoting the welfare of certain categories of persons “ordinarily resident” in their
area, including those who “suffer from mental disorder of any description”. Certain
specific forms of assistance are described in the section, but without prejudice to the
generality of the power. The Secretary of State has made directions (under circular
LAC (93)10) which have the general effect of turning these powers into duties, and
also sets out in some detail the nature of the arrangements which have to be made.
10. By section 32(3) –
“any question arising under this Part as to a person’s ordinary
residence shall be determined by the Secretary of State …”
The procedure for such a determination is governed by the Ordinary Residence
Disputes (National Assistance Act 1948) Directions 2010 (made under sections
21(1) and 29(1) of the 1948 Act). Article 2 deals with provision of services under
Part III pending determination. The dispute must not be allowed to “prevent, delay
or otherwise adversely affect” the provision of services; one of the authorities in
dispute must provisionally accept responsibility pending determination; and, if they
are unable to agree, the local authority in whose area the subject is living must do
so. The authority providing provisional service is the “lead local authority” and as
such must “identify all the local authorities in dispute and co-ordinate discussions
between those authorities in an attempt to resolve the dispute” (article 3(2)).
The Secretary of State’s guidance
11. Before turning to the determination in the present case, it is convenient to
refer to the relevant parts of the Secretary of State’s guidance, which address the
problem of defining ordinary residence of a person who is unable to make decisions
for himself. As already noted, this is done by reference in part to the “Vale tests 1
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and 2” (paras 31-34). Of the first, which treats a mentally disabled person in the
same way as “a small child who was unable to choose where to live”, the guidance
says:
“… the approach set out in test one of Vale may not always be
appropriate and should be used with caution: its relevance will vary
according to the ability of the person to make their own choices and
the extent to which they rely on their parents or carers. This Vale test
should only be applied when making decisions about ordinary
residence cases with similar material facts to those in Vale.”
12. Of test 2, it says:
“34. The alternative approach involves considering a person’s ordinary
residence as if they had capacity. All the facts of the person’s case
should be considered, including physical presence in a particular place
and the nature and purpose of that presence as outlined in Shah, but
without requiring the person themselves to have adopted the residence
voluntarily …”
13. Later paragraphs go into more detail in relation to “young people in transition
from children’s services to adult services”:
“147. Although the provisions of the 1989 Act no longer apply once a
young person reaches 18 (other than the leaving care provisions, if the
young person is eligible for such services), local authorities could
reasonably have regard to the 1989 Act and start from a presumption
that the young person remains ordinarily resident in the local authority
that had responsibility for them under the 1989 Act. Section 105(6) of
the 1989 Act provides that, in determining the ordinary residence of a
child for any purposes of that Act, any period in which a child lives in
the following places should be disregarded:
…
while he is being provided with accommodation by or on behalf of a
local authority.
148. Therefore, where a local authority has placed a child in
accommodation out of area under the 1989 Act, that local authority
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remains the child’s place of ordinary residence for the purposes of the
1989 Act. In such a case, there would be a starting presumption that
the young person’s place of ordinary residence remains the same for
the purposes of the 1948 Act when they turn 18.
149. However, this starting presumption may be rebutted by the
circumstances of the individual’s case and the application of the Shah
or Vale tests (see Part 1 of this guidance). Under these tests, a number
of factors should be taken into account when considering a person’s
ordinary residence for the purposes of the 1948 Act. These include:
the remaining ties the young person has with the authority that was
responsible for their care as a child, ties with the authority in which
they are currently living, the length and nature of residence in this area
and the young person’s views in respect of where he/she wants to live
(if he/she has the mental capacity to make this decision). If the young
person is being provided with residential accommodation under Part
3 of the 1948 Act at the time ordinary residence falls to be assessed,
the deeming provision in section 24(5) applies and it would be
necessary to assess their place of ordinary residence immediately
before such accommodation was provided.
150. In many cases, establishing a young person’s local authority of
ordinary residence will be a straightforward matter. However,
difficulties may arise where a young person has been placed in
residential accommodation out of area as a child under the 1989 Act.
In this situation, the young person may be found to be ordinarily
resident in the local authority that had responsibility for them under
the 1989 Act, or they may be found to have acquired a new ordinary
residence in the area in which they are living, depending on the facts
of their case ….”
Facts
14. PH was born on 27 December 1986. In 1991, PH’s parents asked Wiltshire,
in whose area they were then living, to provide accommodation for him. Acting
under section 20 of the 1989 Act, they placed him with foster parents, Mr and Mrs
B, who lived in South Gloucestershire. In November 1991, PH’s family moved to
Cornwall’s area. The parents have continued to be involved in decisions affecting
PH and he has regular contact with them.
15. In May 2001, anticipating his 18th birthday on 27 December 2004, Wiltshire
wrote to Cornwall regarding the planning of his “transition to adulthood”. They
Page 8
suggested that his ordinary residence should be taken as that of his parents, in
Cornwall. Cornwall maintained that the responsibility for managing the transition
rested, under the 1989 Act, with Wiltshire. Inconclusive correspondence on this
issue continued for more than a year. It seems to have culminated, on the legal side,
with an exchange in June 2002 in which Wiltshire were proposing a reference to the
Secretary of State to enable the matter to be resolved before his 18th birthday;
Cornwall were taking the position that a reference would be premature until a
decision had been made whether he was able to express his own wishes and a
suitable placement on that basis had been determined. Meanwhile, on the basis of
the residence of his parents in the county, Cornwall’s social services department (in
a letter of 25 July 2002) was asserting its own interest in assisting his “transition to
adult living”. It seems that Wiltshire did not again take up the issue of legal
responsibility with Cornwall until October 2005.
16. In April 2004 Wiltshire conducted an assessment and a care review. It
appeared that PH was happy and settled with his foster parents, and that they would
have been content for PH to stay with them after his 18th birthday. However, it
would not be possible for him to stay there, unless the foster placement were to be
re-registered as an adult placement. It was noted that PH’s parents visited him four
or five times a year with occasional visits to the family home usually over Christmas
and in the summer. They wanted to maintain at least the current level of contact. The
foster parents also wished to help him settle into a new place and to visit him as
regularly as possible. Continuing contact with his parents and foster parents was
regarded as vitally important. A placement within the M4/M5 corridor was therefore
thought to be best for ease of travel.
17. A care home was identified, Blackberry Hill in Somerset, where he would be
able to move around the end of the year. At the end of 2004, PH went to Cornwall
to stay with his parents for Christmas (including the day before his 18th birthday).
He returned to stay with Mr and Mrs B until 24 January 2005, when he moved to
Blackberry Hill. This placement was funded by Wiltshire on a provisional basis.
Unfortunately, the placement at Blackberry Hill did not work well for him. On 6
June 2005, he moved to Langley House, also in Somerset, where he has remained
ever since. His parents were involved in that decision. They have continued to
maintain regular telephone contact with him, and he stays with them over Christmas
and occasionally in the summer. Mr and Mrs B also keep in regular contact, now
mainly by letters and cards.
18. Wiltshire carried out a capacity assessment on 15 April 2008 which
concluded that overall and at that time, it was not considered that PH had the
capacity to make an informed choice about where he would want to live nor did he
have the communication skills for this to be expressed. There appeared to be no
evidence of any change in his intellectual abilities since 2004.
Page 9
The Dispute and the Secretary of State’s determination
19. The question of responsibility as between the three possible authorities
(Wiltshire, Cornwall and South Gloucestershire) remained unresolved for a number
of years. In August 2011, they jointly referred the dispute to the Secretary of State
for determination under section 32(3). On 22 March 2012 he issued a determination
that PH had been on 26 December 2004, treated as the relevant date, ordinarily
resident in Cornwall.
20. On the basis that the need for accommodation under section 21 of the 1948
Act arose on his 18th birthday, it was considered right to consider the question of
ordinary residence at that date.
21. The determination continued:
“19. As stated in paragraph 147 of the guidance issued by the
Department, local authorities in determining ordinary residence could
reasonably have regard to the 1989 Act and start from a presumption
that the young person remains ordinarily resident in the local authority
that had responsibility for them under the 1989 Act. …
20. … I consider that, for the purposes of the 1989 Act, [PH] was
ordinarily resident in Wiltshire. Residence while accommodation was
being provided by or on behalf of a local authority, in this case with
foster carers, would be disregarded in accordance with section
105(6)(c) of the 1989 Act.
21. The starting presumption is that [PH] remained ordinarily resident
in the area of the local authority which had responsibility for him
under the 1989 Act, namely Wiltshire. However, as para 149 of the
guidance points out, this starting point may be rebutted by the
circumstances of the case and the application of the Shah and Vale
tests. That paragraph refers to various factors that should be taken into
account in applying those tests.
22. First, I do not consider that [PH] was ordinarily resident in
Wiltshire. He had no links to the area. [PH’s] parents and siblings left
Wiltshire in November 1991, and [by December 2004] there were no
… remaining ties with Wiltshire. … The mere fact that Wiltshire was
the responsible authority for [PH] under the 1989 Act is not enough to
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affirm the presumption that he is ordinarily resident in Wiltshire from
27 December 2004.
…
24. [PH] has severe learning difficulties and lacks mental capacity to
decide where to live. … The family home in Cornwall is a place to
which [he] returns for holidays and his parents are in regular contact
by telephone. In 2004 it was the case that [his] parents visited him four
or five times a year. [His] parents have also been closely involved in
decisions made in relation to his care. … It is clear from the social
services papers that proximity to the family home and ease of travel
to and from Cornwall has been a consideration in planning the care
and support needs of [PH]. I consider that [PH’s] base is with [h]is
parents.
25. I note that Cornwall question whether the family home in Cornwall
can properly be described as a ‘base’ for [PH] given the infrequency
of his visits there. It is not merely the number or frequency of visits
that are determinative. The entirety of the relationship between [PH]
and his parents is to be taken into account, and when regard is had to
that, it is clear that [PH’s] base remained with his parents.
26. Nor do I consider that [PH’s foster parents] can, despite the years
spent caring for [PH], be treated, by analogy, as a parent, such that, in
accordance with test 1 in Vale, [PH] could be considered to have been
ordinarily resident in South Gloucestershire on 26 December 2004.
[PH’s] natural parents remained his base throughout [PH’s] placement
with [his foster parents]. His parents visited him, he stayed with them,
and they were involved with decisions regarding his care and wellbeing. I do not consider [his foster parents] to have so far replaced the
role of [PH’s] parents to be treated by analogy as [his] parents.
27. … [I]t was clear that [PH’s] remaining in South Gloucestershire
was at 26 December a temporary matter. [PH] was to remain with [his
foster parents] in South Gloucestershire only until his section 21
accommodation became available. It is clear from the papers that
continuing contact with his foster carers was considered to be
important and [they] have kept in regular contact, but this is now
mainly by letters and cards. His school, respite care and church life
were associated with this foster care placement, and ceased once he
Page 11
removed to the accommodation provided under section 21 of the 1948
Act.”
22. For these reasons the Secretary of State determined that as at the relevant
date, taken as 26 December 2004, PH was ordinarily resident in the area of Cornwall.
The court proceedings
23. The decision was upheld by Beatson J who, after a careful review of the
authorities, held that the Secretary of State’s reasoning disclosed no error of law. In
summary, he concluded:
“The Secretary of State examined … whether there was a real
relationship between PH and his natural parents and whether they
were in fact making relevant decisions. He was entitled to take account
of that and … of the ‘entirety of the relationship between [PH] and his
parents’. As part of that, he was also entitled to take account of the
time spent by PH with them in Cornwall. …
The process of determining that PH was ordinarily resident in
Cornwall may appear artificial. There would, however, have been a
similar artificiality in determining that he was ordinarily resident in
any of the other counties under consideration …” (paras 87-89)
24. The Court of Appeal disagreed. Elias LJ (with whom the rest of the court
agreed) gave the leading judgment. He took account of authorities since Shah,
including Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57; [2002] 1
AC 547 and A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1.
In the former (at para 18) Lord Slynn had said of “words like ‘ordinary residence’
and ‘normal residence’” that, while they may take their precise meaning from the
legislative context, the starting point is where at the relevant time the person “in fact
resides”, in the sense of the place where (voluntarily) he “eats and sleeps”, regardless
of the reason. In the latter the Supreme Court held that, in determining the “habitual
residence” of a child for the purpose of the Brussels II Regulation revised and the
Hague Convention, the Shah test should not be followed, the search being rather for
the place which reflects “some degree of integration by the child into the social and
family environment”, the intentions of the parents being no more than one relevant
factor; in the majority’s view (Lord Hughes disagreeing on this point) physical
presence was a necessary element.
Page 12
25. Against this background, Elias LJ held that, although the Secretary of State
had carefully considered the facts, he had wrongly applied the Vale test “as if it were
a rule of law”. He proceeded on the basis that section 105(6), which required the
placement in South Gloucestershire to be disregarded for the purposes of the 1989
Act, applied only for the purposes of that Act, not the 1948 Act (citing by way of
analogy R (Hertfordshire County Council) v Hammersmith and Fulham LBC [2011]
EWCA Civ 77; [2011] PTSR 1623, 32). Accordingly, the fact that he had for a long
time lived with foster parents in South Gloucestershire was a relevant factor to
consider when assessing his ordinary residence at that time (para 35).
26. He criticised the decision-maker’s use of the term “base” (following Lord
Denning MR in In re P (GE) (An infant) [1965] Ch 568) to describe PH’s
relationship to his parents’ home:
“… Even if that is a helpful concept, I do not accept that Cornwall
could properly be so described. It was not a place where PH had any
settled residence at all; it was simply a place which he occasionally
visited for holidays. His parents visited him in South Gloucestershire
more frequently than he visited them in Cornwall. PH’s parents’ house
was not, to use Lord Denning’s phrase, ‘a place from whence he goes
out and to which he returns.’ Indeed, in so far as it is helpful to adopt
the concept of his base at all, this was surely South Gloucestershire. It
was there where he lived day by day; it was from there that he left on
his very occasional visits to Cornwall and to which he returned; and it
was there that he received the visits from his parents.” (para 76)
27. He held further that it was unnecessary to remit the matter for redetermination
by the Secretary of State:
“Looking at the facts as at PH’s 18th birthday, there was in my
judgment only one conclusion properly open to the Secretary of State.
PH’s place of ordinary residence was South Gloucestershire. It could
not be Wiltshire, because he ceased to have any connection with it at
all. At that stage he had never lived in Somerset and had no connection
with it. And for reasons I have given, the mere fact that his parents’
place of ordinary residence was in Cornwall could not justify finding
that to be PH’s place of ordinary residence.” (para 85)
Page 13
Preliminary issues
28. Before turning to the main substantive issue, it is necessary to consider two
preliminary issues raised by Mr Lock QC on behalf of Cornwall, for the first time
in the court proceedings. Although no objection has been taken to this course, I
would wish to reserve my position as to its appropriateness in the context of a
statutory power intended to encourage co-operation and lack of technicality.
29. He submits, first, that under section 21 there is power to make provision of
residential care services only if it is “not otherwise available” (section 21(1)(a)), and
if it is not “authorised or required to be made … by or under any enactment not
contained in this Part of this Act”. In the three years following PH’s 18th birthday,
so it is said, Wiltshire’s powers to provide “assistance” under section 23C of the
1989 Act were wide enough to cover all the services in fact provided for him during
that period. There was therefore no place for section 21. It follows that there was at
that date no question as to his ordinary residence under the Act requiring
determination by the Secretary of State, and his decision was made without
jurisdiction. Secondly, for good measure, he submits that Wiltshire itself had no
power at all to incur expenditure under the 1948 Act, and no right to seek to recoup
it from any other authority. At the time of PH’s majority, he was not within their
area, and there was no basis for treating him as ordinarily resident there, his only
practical connection with the county through his parents having been severed some
14 years before.
30. These arguments were rejected by Beatson J and by the Court of Appeal.
Without disrespect to the persistent arguments of Mr Lock QC in this court, I have
no doubt that they were right to do so. I would have been content to adopt their
reasoning. But there are, in my view, two short answers. The first concerns the
nature of the powers, the second timing. The argument only works if there is identity
between the two sets of powers. In my view there is not. Part III of the 1948 Act
provides the exclusive statutory basis for securing the long term care and
accommodation which PH needs and has needed since his majority. That is not
displaced by the relevant provisions of the 1989 Act, which are transitional in
character. I would not wish to place artificial restrictions of the types of assistance
which may be provided if necessary under section 23C. However, their purpose is,
not to supplant the substantive regime, but to ease the transition (usually) to adult
independence. There may of course be some overlap in some of the specific
provision made from day to day, but they are serving different ultimate purposes,
one temporary, the other long term. That potential overlap is not such in my view as
to exclude section 21(1)(a), under its own terms or by reference to section 21(8).
31. Secondly, and in any event, section 32 should in my view be read broadly in
respect of timing. Even if the need for 1948 Act provision did not arise immediately
Page 14
on PH’s 18th birthday, the nature of the dispute was already apparent, and needed
to be resolved in the immediate future to ensure a smooth transition to the new
regime. That dispute was willingly referred to the Secretary of State by the three
authorities concerned. It was obviously desirable for all parties, most particularly
PH, that it should be resolved without delay. I see no reason to read section 32 as
confined to those disputes arising in the period after the duties under the 1948 Act
have come into effect. On the contrary a purposive construction would extend it to
disputes which need to be resolved in advance, so as to enable the duties under the
Act to be exercised by the correct authority from the outset.
32. As to whether Wiltshire itself should have been excluded as a potential party
to the dispute, Mr Lock’s argument is ingenious but unrealistic. As has been seen
from the decision-determination, the Secretary of State’s starting point was a
presumption that Wiltshire, as the authority responsible under the 1989 Act, should
be treated as responsible also under the 1948 Act, unless and until displaced by
another authority under the Shah or Vale tests. Thus Wiltshire was (and still is) in
the firing-line for potential liability, and it would have been irresponsible to proceed
on any other basis. No amount of retrospective legal theorising by Cornwall can
alter that position.
Ordinary residence – the law
Background
33. The 1948 Act was designed, in the words of its long title, to “terminate the
existing poor law”, and to replace it with a new scheme for the “assistance of persons
in need” by the new National Assistance Board and by local authorities. Miss
Mountfield QC (for South Gloucestershire) has helpfully drawn our attention to the
approach under the Poor Law Act 1930 to the allocation of responsibility for the old
or infirm or those otherwise unable to work. The duty to “relieve and maintain” such
persons was placed on their “father, grandfather, mother, grandmother husband or
child …” (1930 Act section 14). They were supported by the duty of the council of
every county or county borough to “provide such relief as may be necessary” for the
same group of people (section 15(1)), that duty applying generally to “all persons
within (their area)” (section 15(2)).
34. The adoption by the 1948 Act of “ordinary residence” in this context, as the
basis for allocation of responsibility between local authorities, was a new departure.
As will be seen, a similar approach was adopted at about the same time in relation
to allocation of responsibilities between education authorities. It is noteworthy that
there was no repetition of the pre-1948 statutory duty of parents or family members
for maintenance of incapacitated adults, and no recognition even of their practical
Page 15
role in making decisions on behalf of those unable to do so for themselves. The
common law could not fill the gap (see re F (Mental Patient: Sterilisation) [1990]
2 AC 1, confirming that the parent of a mentally-disabled adult had no power at
common law to consent to a medical operation on her behalf). Even in such cases
the criterion was to be the ordinary residence of the individual, not of his parent or
family, or anyone else.
35. However, it was recognised from the outset that some modification was
required in the case of those whose current residence was the result of care decisions,
rather than their personal connections with the area in question. Thus section 24(5)
provides where a person is being provided with residential accommodation under
the Act, he is deemed for the purposes of this Act to continue to be ordinarily
resident in the area in which he was ordinarily resident immediately before the
residential accommodation was provided. This formulation left open the question
whether residence in such accommodation would otherwise have been regarded as
“ordinary residence” for the purpose of section 24 – a question to which I shall
return. In policy terms it ensured that decisions on placements, inside or outside an
authority’s area, were made solely with reference to the interests of the client,
without affecting the placing authority’s continuing responsibility for his care.
36. It is common ground that in the present context, unlike others considered in
the authorities, the subject can be “ordinarily resident” in the area of only one local
authority. Otherwise that test would not be an effective tool for allocating
responsibility for services or their cost. As Beatson J observed (para 55) this factor,
combined with what he called the “deeming” provision in section 24(5), may
sometimes lead to “artificial and arbitrary” results.
37. The ordinary residence test has proved resilient. In its 2010 Consultation
Paper on Adult Social Care (CP 192), para 8.12, the Law Commission noted that it
had been adopted in a number of care statutes but not all, and that the resulting
picture was “complex and inconsistent”. However, it was not part of their remit to
consider the meaning of the expression, nor whether it was the most effective way
of determining which local authority is responsible for the provision of services. In
their final report (Law Commission Report: Adult Social Care (2011) Law Com
326), they declined invitations from consultees to extend their remit to these issues,
regarding them as “matters for political policy and not law reform” (para 10.11).
38. Nonetheless, in their proposals for a single adult care statute they
recommended that ordinary residence should continue to be the primary criterion of
responsibility for all community care services (para 10.9). The Care Act 2014, which
generally gives effect to their proposals, adopts the criterion of ordinary residence.
The basic definition may be made subject to exceptions, to be defined by regulations,
for placements in specified types of care accommodation, the effect of which is to
Page 16
substitute reference to the area of ordinary residence before the placement began, or
the beginning of the period of consecutive placements of specified types (section
39).
The authorities on “ordinary residence”
39. At the time of the 1948 Act, most prior case-law on the meaning of the
expression “ordinary residence” related to income tax. Liability depended on
whether a person was resident or ordinarily resident in the United Kingdom for a
particular tax year. In that context it had long been established that a person could
be ordinarily resident in two places. This approach was affirmed by the House of
Lords in two well-known cases reported in 1928: Levene v Inland Revenue Comrs
[1928] AC 217 and Inland Revenue Comrs v Lysaght [1928] AC 234. In an earlier
case, Cooper v Cadwalader (1904) 5 Tax Cases 101, an American resident in New
York, who had taken a house in Scotland which he visited for two months each year,
was held to be resident and ordinarily resident in the United Kingdom for tax
purposes for each such year. It mattered not that for other purposes he might be
treated as ordinarily resident in New York. As Viscount Sumner later observed
“Who in New York would have said of Mr Cadwalader ‘his home’s in the
Highlands; his home is not here’?” (Lysaght at p 244).
40. The House of Lords confirmed that approach and reached the same
conclusions on the facts of the two cases in the 1928 Reports. Mr Levene lived
abroad, but returned each year for about five months for the purpose of obtaining
medical advice, visiting relatives and other matters. Mr Lysaght lived in Ireland, but
returned to England each month for business purposes, remaining for about a week
and usually staying in a hotel. In both cases the Special Commissioners had been
entitled to hold that they were resident and ordinarily resident in this country.
41. Those authorities were followed in the leading modern authority on the
meaning of the expression in a statutory context. That is the speech of Lord Scarman
in R v Barnet LBC, Ex p Shah [1983] AC 309. The question was whether four foreign
students qualified for an education grant on the basis that they had been “ordinarily
resident” in the United Kingdom “throughout” the three years preceding the first
year of their course. The authorities had argued that their ordinary residence, in the
sense of their “real home”, was elsewhere. The House disagreed. Lord Scarman, in
the leading speech, treated the tax cases as authority for the “natural and ordinary
meaning” of the expression. In particular he cited Viscount Sumner’s reference to
“ordinary” residence as “that part of the regular order of a man’s life, adopted
voluntarily and for settled purposes …” (Lysaght p 243). Lord Scarman echoed those
words in his own statement of the natural and ordinary meaning of the term:
Page 17
“Unless, therefore, it can be shown that the statutory framework or the
legal context in which the words are used requires a different meaning,
I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers
to a man’s abode in a particular place or country which 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 of long duration.” (p 343GH)
The “mind” of the subject was relevant in two respects. First the residence must be
“voluntarily adopted”, rather than for example “enforced presence by reason of
kidnapping or imprisonment”. Secondly, there must be “a degree of settled
purpose”:
“This is not to say that the (subject) intends to stay where he is
indefinitely; indeed his purpose, while settled, may be for a limited
period. … All that is necessary is that the purpose of living where one
does has a sufficient degree of continuity to be properly described as
settled.” (p 344D)
A “settled” purpose did not need to be indefinite. “Education, business or profession
… or merely love of a place” could be enough. There was no justification for
substituting a “real home test”, as the councils had argued (p 345B).
42. Although understandably this passage has been often quoted and relied on in
later cases, the weight given to the concept of a “settled purpose” needs to be seen
in context. The focus of the passage was to explain why the undoubted residence of
the claimants in this country for the necessary period, albeit for the temporary
purpose of education, was sufficiently settled to qualify as “ordinary” under the
accepted meaning. It was relevant therefore to show that it was no less settled than,
for example, the residence of Mr Cadwalader during his annual visit to Scotland, or
that of Mr Levene on his five-month visit for medical and other reasons. Nor did it
matter, it seems, that they might have had other “ordinary” residences in their
countries of origin.
43. As Mr Sheldon QC (for the Secretary of State) points out, Lord Scarman
made reference, albeit by way of contrast, to provisions in the same legislation for
allocating financial responsibility between education authorities, which are not
dissimilar to those now in issue. Lord Scarman referred to provisions for allocation
as between authorities in Education (Miscellaneous Provisions) Act 1953 section 7,
Education Act 1962 section 1(7), and section 31 of the Education Act 1980 section
31 (see Shah pp 338F, 340B)). They had contained a formula, for recoupment of
costs as between education authorities, based in part on “ordinary residence”, and
Page 18
under which disputes were to be determined by the Minister or Secretary of State.
(Similar provisions can be traced back to the same time as the 1948 Act: see
Education (Miscellaneous Provisions) Act 1948 section 6.) The parallel is not
necessarily exact. For example, the 1962 Act contained a schedule dealing with
“ordinary residence” (applied by 1962 Act section 1(7)), in which the primary test
was linked with a discretionary power in certain circumstances for the Secretary of
State to impose a different result by direction. Lord Scarman described such
provisions as “administrative and fiscal …” in character, by contrast with the
“justiciable” issue before the House. He noted, without expressing an opinion, the
possibility that in that context “ordinary residence” might have –
“… a special meaning when the distribution of the fiscal burden
between local education authorities is being considered as a matter for
the exercise of executive decision by the Secretary of State” (p 340BG).
This is helpful as illustrating that the meaning of the term ordinary residence may
be strongly influenced by the particular statutory context. However, it is common
ground as I understand it that in the present context, once properly construed, the
issue for the Secretary of State was one of factual judgement rather than executive
discretion, and that his decision is “justiciable”, in the sense that it is reviewable by
the courts on ordinary Wednesbury principles.
44. Another authority relied on by the Secretary of State, again from a very
different area of the law, is In re P (GE) (An infant) [1965] Ch 568. The Court of
Appeal (applying the analogy of the law of treason) decided that the wardship
jurisdiction of the Court of Chancery extended to any child “ordinarily resident” in
this country. Lord Denning MR spoke of the ordinary residence of “a child of tender
years who cannot decide for himself where to live”:
“So long as the father and mother are living together in the
matrimonial home, the child’s ordinary residence is the home – and it
is still his ordinary residence, even while he is away at boarding
school. It is his base, from whence he goes out and to which he returns
…” (p 585)
This is the source of the word “base”, used in Vale and in the Secretary of State’s
guidance, as indicative of ordinary residence. However, it is important again to see
it in context. There is nothing to suggest that Lord Denning MR was intending to
separate the idea of a “base” from the need for physical residence of some kind. The
underlying assumption seems to have been that the child would be living at his
Page 19
parent’s home for the parts of the year when he was not at school, and would remain
“ordinarily” so resident throughout.
45. Shortly after the Shah judgment, in R v Waltham Forest London Borough
Council, Ex p Vale (unreported, 11 February 1985), Taylor J had to consider a case
much closer to the present, involving the application of the ordinary residence test
under the 1948 Act to someone mentally incapable of forming a settled intention
where to live. Judith, an English woman, had been in residential care in Ireland for
over 20 years where her parents had been living. When her parents returned to
England, it was decided that she should return to live near them. She stayed with
them at their house in Waltham Forest for a few weeks while a suitable residential
home was being found, and she was then placed in a home in Buckinghamshire. The
shortfall in costs (so far as not borne by the Department of Health and Social
Security) was sought from Waltham Forest on the grounds that she was “ordinarily
resident” in the borough.
46. The case was argued and decided by reference to the Shah test of ordinary
residence, adapted for the case of someone lacking the power to form for herself a
settled intention where to live. Taylor J adopted a two-part approach suggested by
counsel, but on either approach he considered that her residence with her parents
could be treated as sufficiently settled to satisfy the Shah test. The result is
unremarkable, but in view of the weight later given (particularly in the Secretary of
State’s guidance) to “Vale tests 1 and 2”, it is right to quote the judge’s own words.
For the first approach he made reference to Lord Denning MR’s concept of a child’s
“base”:
“Where the (subject) … is so mentally handicapped as to be totally
dependent upon a parent or guardian, the concept of her having an
independent ordinary residence of her own which she has adopted
voluntarily and for which she has a settled purpose does not arise. She
is in the same position as a small child. Her ordinary residence is that
of her parents because that is her ‘base’, to use the word applied by
Lord Denning in the infant case cited.” (emphasis added)
The alternative approach, considering her as if she were a person of normal mental
capacity, led to the same result:
“I cannot accept that during the relevant month Judith should be
regarded as a squatter in her parents’ home. Her residence there had,
in my judgment, all the attributes necessary to constitute ordinary
residence within Lord Scarman’s test, albeit for a short duration.”
Page 20
47. There is no reason to quarrel with Taylor J’s conclusion on the unusual facts
of the case. In circumstances where her only previous residence had been in Ireland,
there was obvious sense in treating her few weeks living with her parents as
sufficiently settled to meet the Shah test, whether by reference to the intentions of
those making decisions on her behalf, or to the “attributes” of the residence
objectively viewed. With hindsight, it was perhaps unhelpful to elide the Shah test
with the idea of a “base”, used by Lord Denning MR in a different context and for a
different purpose. The italicised words in the first passage quoted above cannot be
read as supporting any more general proposition than that Judith’s ordinary
residence was to be equated with that of her parents, without reference to the period
of her own actual residence with them. Nor in my view should Taylor J’s two
approaches be treated as separate legal tests. Rather they were complementary,
common-sense approaches to the application of the Shah test to a person unable to
make decisions for herself; that is, to the single question whether her period of actual
residence with her parents was sufficiently “settled” to amount to ordinary
residence.
48. Most subsequent authorities on the issue of ordinary residence in the context
of social services have relied on these authorities, without detailed discussion. The
Court of Appeal also referred to authorities on other comparable expressions
(“normal residence”, “habitual residence”) in other statutes. Without disrespect to
the high authority of the statements quoted, their interpretation is a doubtful guide
to the different language used in the provisions before us, and cannot in any event
be considered without regard to the different statutory contexts in which they appear.
As was pointed out by Lady Hale in A v A (above, at para 24) the phrase “habitual
residence” was adopted in family legislation partly to distinguish it from ordinary
residence as used in the taxation and immigration context.
Ordinary residence in the present case
49. I agree with the Court of Appeal that the decision-maker’s reasons for
selecting Cornwall cannot be supported. The writer started, not from an assessment
of the duration and quality of PH’s actual residence in any of the competing areas,
but from an attempt to ascertain his “base”, by reference to his relationships with
those concerned. Thus in deciding that the family home in Cornwall could properly
be described “as a ‘base’ for [PH]” notwithstanding the infrequency of his visits, the
determination stated that it was necessary to consider “not merely the number or
frequency of visits [but] … the entirety of the relationship between [PH] and his
parents …”. There is no suggestion that his brief periods of staying with his parents
at holiday times could in themselves amount to ordinary residence.
Page 21
50. Mr Sheldon seeks to support this approach by reference to the guidance and
the authorities there relied on. He submits that, in the case of a person who is unable
to make decisions for himself, it is necessary to determine –
“the place which most appropriately represents at the material time,
the seat of the person’s decision-making power given his lack of
capacity to make decisions where to live, the coming to an end of a
placement under the 1989 Act, and the extent to which his parents (or
those in loco parentis) can and will make the relevant decisions on his
behalf.”
Miss Mountfield QC is even more explicit, submitting that it is right in principle to
look “to the ordinary residence of the decision-maker in deciding the ordinary
residence of a person who lacks capacity”.
51. There might be force in these approaches from a policy point of view, since
they would reflect the importance of the link between the responsible authority and
those in practice representing the interests of the individual concerned. They are
however impossible to reconcile with the language of the statute, under which it is
the residence of the subject, and the nature of that residence, which provide the
essential criterion. In so far as Vale is relied on to substitute an alternative test, based
on “the seat of (his) decision-making”, or otherwise on his relationship with his
parents and their home, it depends on a misunderstanding of that judgment. The seat
of the decision-making power in relation to a mentally disabled adult is the authority
making the placement (subject to any contrary determination by the Court of
Protection), not the parents. For the same reason, the weight put by the decisionmaker on the so-called Vale tests 1 and 2, both in the guidance and in the decisiondetermination, was in my view misplaced.
52. The more difficult issue is to make a principled choice between the two
alternatives – South Gloucestershire or Wiltshire. Applying the Shah tests without
qualification it is easy to understand why the Court of Appeal chose the former. If
one asks where was PH’s ordinary residence in the period immediately before his
move to Somerset, an obvious answer for many purposes would be his home with
his carers. That is where he had lived happily for some fourteen years. On an
objective view it might be thought sufficiently “settled” to meet Lord Scarman’s
test, regardless of whether PH himself took any part in the decision-making. The
Secretary of State rejected this alternative solely because he did not think that the
foster parents had “so far replaced the role of [PH’s] parents to be treated by analogy
as [his] parents” under the Vale tests. For the reasons I have given this involved a
misunderstanding of the reasoning in Vale. If the question is whether the residence
of PH himself was sufficiently settled to satisfy the Shah test, the precise status of
Page 22
his foster-parents was irrelevant. On this point the intentions and perceptions of his
parents and his foster-parents were identical.
53. However, although the choice of South Gloucestershire may fit the language
of the statute, it runs directly counter to its policy. The present residence in Somerset
is ignored because there is no connection with that county other than a placement
under the 1948 Act. By the same policy reasoning, South Gloucestershire’s case for
exclusion would seem even stronger. There is no present connection of any kind
with that county, the only connection being a historic placement under a statute
which specifically excluded it from consideration as the place of ordinary residence
for the purposes of that Act.
54. The question therefore arises whether, despite the broad similarity and
obvious underlying purpose of these provisions (namely that an authority should not
be able to export its responsibility for providing the necessary accommodation by
exporting the person who is in need of it), there is a hiatus in the legislation such
that a person who was placed by X in the area of Y under the 1989 Act, and remained
until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to
be regarded on reaching that age as ordinarily resident in the area of Y for the
purposes 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.
55. It is highly undesirable that this should be so. It would run counter to the
policy discernable in both Acts that the ordinary residence of a person provided with
accommodation should not be affected for the purposes of an authority’s
responsibilities by the location of that person’s placement. It would also have
potentially adverse consequences. For some needy children with particular
disabilities the most suitable placement may be outside the boundaries of their local
authority, and the people who are cared for in some specialist settings may come
from all over the country. It would be highly regrettable if those who provide
specialist care under the auspices of a local authority were constrained in their
willingness to receive children from the area of another authority through
considerations of the long term financial burden which would potentially follow.
56. The Court of Appeal (para 35), apparently without argument to the contrary,
proceeded on the basis that the “deeming” provision under each statute applied only
for the purposes of its own Act. Elias LJ cited R (Hertfordshire County Council) v
Hammersmith and Fulham LBC [2011] EWCA Civ 77; [2011] PTSR 1623, in which
the court held that section 24(5) was a self-contained provision. However, the court
was there faced with a rather different argument, which depended on reading the
Mental Health Act 1983 section 117 (in which responsibility was based on
“residence” without any deeming provision) as though it had the same meaning as
Page 23
ordinary residence under section 24. The court (para 45) rejected that argument, not
only because it was inconsistent with the statute, but also because it was constrained
by higher authority to hold that section 117 was a free-standing provision not
dependent on the 1948 Act.
57. In construing the relevant words in section 24 of the 1948 Act, the statutory
context is critical. The purpose of the provision is purely “administrative and fiscal”,
to borrow Lord Scarman’s phrase in R v Barnet London Borough Council, Ex p Shah
(see para 43 above). It does not affect the rights of the person concerned, but only
the allocation of responsibility as between local authorities. Lord Scarman
recognised the possibility that such a context might justify a different approach as
compared to one directed to a person’s entitlement to a benefit. In this respect the
function of the relevant provisions in each Act is the same.
58. Section 24(5) poses the question: in which authority’s area was PH ordinarily
resident immediately before his placement in Somerset under the 1948 Act? In a
case where the person concerned was at the relevant time living in accommodation
in which he had been placed by a local authority under the 1989 Act, it would be
artificial to ignore the nature of such a placement in that parallel statutory context.
He was living for the time being in a place determined, not by his own settled
intention, but by the responsible local authority solely for the purpose of fulfilling
its statutory duties.
59. In other words, it would be wrong to interpret section 24 of the 1948 Act so
as to regard PH as having been ordinarily resident in South Gloucestershire by
reason of a form of residence whose legal characteristics are to be found in the
provisions of the 1989 Act. Since one of the characteristics of that placement is that
it did not affect his ordinary residence under the statutory scheme, it would create
an unnecessary and avoidable mismatch to treat the placement as having had that
effect when it came to the transition in his care arrangements on his 18th birthday.
60. On this analysis it follows that PH’s placement in South Gloucestershire by
Wiltshire is not to be regarded as bringing about a change in his ordinary residence.
Throughout the period until he reached 18 he remained continuously where he was
placed by Wiltshire, under an arrangement made and paid for by them. For fiscal
and administrative purposes his ordinary residence continued to be in their area,
regardless of where they determined that he should live. It may seem harsh to
Wiltshire to have to retain indefinite responsibility for a person who left the area
many years ago. But against that there are advantages for the subject in continuity
of planning and financial responsibility. As between different authorities, an element
of arbitrariness and “swings and roundabouts” may be unavoidable.
Page 24
61. For these reasons, I would allow the appeals and in the declaration made by
the Court of Appeal for references to South Gloucestershire I would substitute
references to Wiltshire.
LORD WILSON: (dissenting)
62. My colleagues consider that, in making his determination under section 32(3)
of the National Assistance Act 1948 (“the 1948 Act”) of the place of PH’s ordinary
residence on 26 December 2004 for the purpose of section 24(1) of the same Act,
the Secretary of State could lawfully have reached only one conclusion. It is,
according to them, that on that date, which was the day prior to his 18th birthday,
PH was ordinarily resident in a county (Wiltshire):
a) in which in May 1991, ie about 13 years earlier, he had ceased to live
upon his removal to live with the foster parents in South
Gloucestershire;
b) to which, during the following 13 years, he never returned, not even
just to stay overnight;
c) in which in November 1991, ie also about 13 years earlier, his parents
had ceased to live upon their removal to live in Cornwall;
d) in which by 1997, ie about seven years earlier, both sets of his
grandparents had, in one case because of relocation and in the other
because of death, ceased to live; and
e) in which, from 1997 onwards until many years after 26 December
2004, no home remained available, even in principle, for his
occupation.
63. Such is a conclusion to which, with great respect to my colleagues, I do not
subscribe. It is a conclusion for which no party has contended at any stage of these
proceedings. A court should tread cautiously before favouring a solution devised
only by itself, particularly where, as here, it has been addressed by an array of
excellent counsel instructed by public authorities widely experienced in this area of
the law.
Page 25
64. I agree that there was only one conclusion which the Secretary of State could
lawfully have reached. But, so I consider, his conclusion should have been that on
26 December 2004 PH was ordinarily resident in South Gloucestershire. So I believe
that the order of the Court of Appeal was correct.
65. I must squarely confront the problem. There appear to be strong reasons of
public policy which militate in favour of imposing upon Wiltshire, rather than upon
South Gloucestershire, the obligation of making decisions about a suitable
placement of PH following his 18th birthday and of funding whatever placement
may thereafter be suitable for him from time to time. It would be a heavy financial
burden for Wiltshire but its burden in the case of PH would be borne to the same
extent by some other local authority in a reverse situation: in other words the burdens
should even out. Public policy suggests:
a) that it is desirable that a local authority which has exercised the decisionmaking power (and has borne the funding burden) in relation to the placement
of a mentally incapacitated minor should, in the light of its knowledge of his
needs, continue to exercise that power (and bear that burden) following the
attainment of his majority; and
b) that it is undesirable that a local authority which is exercising the decisionmaking power (and bearing the funding burden) in relation to the placement
of an incapacitated minor should, while he remains a minor, be able to place
him in a suitable facility in the area of another local authority (indeed, in the
case of a private placement, without the consent of that local authority), with
the result that, following the attainment of his majority, the decision-making
power and, in particular, the financial burden should fall upon that other local
authority. In the present case, for example, the evidence suggests that
Wiltshire’s placement of PH in 1991 with his excellent specialist foster
parents did not in any way involve the local authority of South
Gloucestershire, which for the following 13 years appears to have played no
part in directing or securing his care. Yet, on my analysis, it is South
Gloucestershire which should thereafter have begun to exercise the decisionmaking power and, in particular, to bear the financial burden. The Secretary
of State accepts that, of the young people who move from being looked after
by local authorities as minors to being provided with accommodation by them
as adults, those lacking capacity are only a small proportion. But he explains
convincingly that, in the light of their specialised needs, the cost of
maintaining them indefinitely is very high. He proceeds to identify real
concerns that a few local authorities might therefore be motivated (to use the
crude shorthand which, only for convenience, has been deployed in the
hearing before this court) to “export” such a minor to the area of another local
authority prior to the attainment of his majority; and equally that, were that
other local authority to be the administrator of a specialist resource entirely
Page 26
suitable to the needs of a minor, it might nevertheless be motivated to refuse
him admission to it for fear of the financial consequences following the
attainment of his majority.
66. But such is the result which in my view the law, as it stands, clearly compels.
I am not a legislator. Nor, with respect, are my colleagues.
67. When, by section 24(1) of the 1948 Act, it decided to identify the local
authority responsible for making the provision specified by the Act by reference to
a person’s “ordinary residence” in its area, Parliament deployed a well-known
phrase. The courts confidently assume that, in deploying a phrase, Parliament
understands the meaning which the courts have ascribed to it: Regina v G [2003]
UKHL 50, [2004] 1 AC 1034, at p 1059 (Lord Steyn). No doubt Parliament
understands that in the future the courts may refine and develop their interpretation
of a phrase. Subject to that, however, Parliament in 1948 intended that the courts
should construe the phrase in section 24(1) by reference to its established meaning.
Furthermore, insofar as the courts might encounter any difficulty in applying every
aspect of its established meaning to any person entitled to provision under the Act,
for example to a mentally incapacitated person, Parliament no doubt intended that
the courts should, albeit only to the necessary extent, adapt their interpretation of
the phrase. To that extent the framework in which Parliament set the phrase might
require the courts to ascribe to it a somewhat different meaning.
68. In 1948 the established meaning of the phrase “ordinary residence” was that
which the House of Lords had ascribed to it in the Levene and Lysaght cases cited
by Lord Carnwath at para 39 above. In the former Viscount Cave LC had stated at
p 225 that it meant “residence in a place with some degree of continuity and apart
from accidental and temporary absences”. In the latter Viscount Sumner had stated
at p 243 that “the converse to ‘ordinarily’ is ‘extraordinarily’ and that part of the
regular order of a man’s life, adopted voluntarily and for settled purposes, is not
‘extraordinary’”.
69. In the Shah case, cited by Lord Carnwath at para 41 above, Lord Scarman, at
p 341, quoted both these statements; and it can be seen that his classic definition of
the phrase “ordinary residence”, set out by Lord Carnwath, was in effect no more
than an amalgamation of what Viscount Cave and Viscount Sumner had said. By
applying his definition, Lord Scarman and the other members of the committee
decided that the four foreign students, who had pursued a course of study in the UK
for the previous three years with leave to remain in the UK limited thereto, and who
aspired, with the aid of grants, to pursue courses of further education, had been
ordinarily resident in the UK throughout those three years and were therefore
entitled to the grants under the Education Act 1962. Lord Scarman noted at pp 346
and 347 that each of the lower courts had attached importance to their belief that in
Page 27
1962 Parliament would not have intended that foreign students with only limited
leave to remain in the UK should be entitled to grants by which to further their
education. He continued, at pp 347 and 348:
“My Lords, the basic error of law in the judgments below was the
failure … to appreciate the authoritative guidance given by this House
in Levene … and … Lysaght as to the natural and ordinary meaning
of the words “ordinarily resident”. They attached too much
importance to the particular purpose of the residence; and too little to
the evidence of a regular mode of life for a settled purpose, whatever
it be, whether study, business, work or pleasure. In so doing, they were
influenced by their own views of policy and by the immigration status
of the students.
The way in which they used policy was, in my judgment, an
impermissible approach to the interpretation of statutory language.
Judges may not interpret statutes in the light of their own views
as to policy.” [Bold type supplied]
70. In 1948 the jurisdiction to commit a child to the care of a local authority was
contained in section 62(1)(b) of the Children and Young Persons Act 1933 (“the
1933 Act”). No doubt Parliament could have extended the disregard in section 24(5)
of the 1948 Act so as to encompass any period in which, immediately prior to the
provision of residential accommodation to a person under Part III of that Act, he had
been in the care of a local authority under section 62(1)(b) of the 1933 Act. But it
did not do so. Equally, following the rationalisation of the provisions for taking
children into care achieved by the Children Act 1989 (“the 1989 Act”), Parliament
could have extended the disregard in section 24(5) of the 1948 Act so as to
encompass any period in which, immediately prior to the provision of such
accommodation, the person had been looked after by a local authority within the
meaning of section 22(1) of the 1989 Act. But it did not do so. By paragraph 9 of
the Schedule to the Care Act 2014 and Children and Families Act 2014
(Consequential Amendments) Order 2015, (SI 2015/914), made pursuant to section
123(2) of the Care Act 2014 (“the 2014 Act”), the application of the 1948 Act has
now been restricted to Wales. In England accommodation for adults in need of it is
now provided under the 2014 Act which, by section 39, has replaced the disregards
formerly contained in section 24 of the 1948 Act with wider disregards. But, even
now, Parliament has not chosen to include a requirement to disregard a period in
which, as a minor, the person has been looked after by a local authority within the
meaning of section 22(1) of the 1989 Act. It is instead my colleagues who have
chosen to do so.
Page 28
71. Indeed the statutory disregards, limited though they are, present another
difficulty. In para 59 above Lord Carnwath suggests that the “legal characteristics”
of the residence of a minor provided with accommodation under the 1989 Act are
such as to make it irrelevant to the determination of his ordinary residence for the
purposes of section 24(1) of the 1948 Act. But, if so, they must make it equally
irrelevant to the determination of his ordinary residence for the purposes of the 1989
Act itself, including for those of section 31(8)(a) which requires the recipient of a
care order to be the local authority within whose area he is ordinarily resident. So
then the question arises: why should Parliament, by section 105(6)(c) of the 1989
Act, have troubled to require that the period of provision of such accommodation be
disregarded? Lord Carnwath’s analysis renders the subsection redundant. More
broadly the same charge can, in my view, be levelled in relation to the disregards
provided by section 24(5) of the 1948 Act and now by section 39 of the 2014 Act,
which provide for the disregard of periods of accommodation which has legal
characteristics analogous to those of accommodation provided under the 1989 Act.
72. The Secretary of State determined that on 26 December 2004 PH was
ordinarily resident in Cornwall. I agree that his determination was unlawful.
Although clearly PH had links with Cornwall which he lacked with Wiltshire, it was
artificial to describe him as having had a “base” with his parents there; and it was
unrealistic to regard them as having continued to be the decision-makers in relation
to him. Having summarised approaches to the issue which, so counsel suggested,
favoured the identification of Cornwall as the responsible local authority under the
1948 Act, Lord Carnwath states at para 51 above:
“There might be force in these approaches from a policy point of view.
… They are however impossible to reconcile with the language of the
statute, under which it is the residence of the subject, and the nature
of that residence, which provide the essential criterion.”
I agree with Lord Carnwath’s statement which, by coincidence, encapsulates the
reasons for my own rejection of his conclusion that on 26 December 2004 PH was
ordinarily resident in Wiltshire.
73. But it is not only by a process of elimination that I conclude that PH was then
ordinarily resident in South Gloucestershire.
74. In A v A (Children: Habitual Residence), [2013] UKSC 60, [2014] AC 1, this
court determined the proper approach to an inquiry into a child’s habitual residence
for the purposes of article 8 of Council Regulation (EC) 2201/2003, namely the
Brussels II Revised Regulation. It ruled that, in the light of the identity of article 8
as a European regulation, the inquiry into a child’s habitual residence was required
Page 29
to be conducted by reference to the interpretation of the phrase favoured by the Court
of Justice of the European Union, namely to identify “the place which reflects some
degree of integration by the child in a social and family environment” and that, for
the purposes of article 8, such an inquiry was preferable to one determined by
reference to Lord Scarman’s classic definition of ordinary residence in the Shah
case: see para 54(iii) and (v) of the judgment of Lady Hale. The European approach
is plainly tailored so as to allow for the inability of most children to make decisions
for themselves and, as such, it seems well suited to an inquiry into the ordinary
residence of a mentally incapacitated person such as PH. I agree with the observation
of Elias LJ in his judgment in the present case that there is much to be said in favour
of a determination of PH’s ordinary residence by reference to a similar approach.
Were the inquiry indeed to be into the place of PH’s integration in a social and family
environment, that place would plainly be South Gloucestershire. But application of
Lord Scarman’s definition, subject to the alteration of one word required by PH’s
incapacity, yields the same conclusion. For on 26 December 2004 South
Gloucestershire represented the abode which he had adopted for settled purposes as
part of the regular order of his life for the time being. The word which requires
alteration is “voluntarily”. PH did not adopt his abode in the foster home
“voluntarily”. But, as the Secretary of State recorded in his determination, PH was
very happy and settled in the foster home and had to leave it only because it was not
possible for the foster parents to accommodate an adult under the 1948 Act while
continuing to foster children under the 1989 Act. One may confidently infer that,
had he had capacity, PH would have adopted his abode in the foster home
voluntarily. In the light of his incapacity, however, the context requires a modest
replacement of the word “voluntarily” with the word “contentedly” and, on that
basis, his ordinary residence in South Gloucestershire is again plainly established.
75. I therefore take the view that both of these appeals should be dismissed.Trinity Term
[2015] UKSC 46
On appeal from: [2014] EWCA Civ 12
JUDGMENT
R (on the application of Cornwall Council)
(Respondent) v Secretary of State for Health
(Appellant)
R (on the application of Cornwall Council)
(Respondent) v Somerset County Council
(Appellant)
before
Lady Hale, Deputy President
Lord Wilson
Lord Carnwath
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
8 July 2015
Heard on 18 and 19 March 2015
Appellant (Secretary of
State for Health)
Respondent (Cornwall
Council)
Clive Sheldon QC David Lock QC
Deok
-Joo Rhee Charles Banner
(Instructed by
Government Legal
Department
)
(Instructed by Cornwall
Council Legal Services
)
Appellant
/Intervener (Somerset
County Council)
David Fletcher
(Instructed by Somerset
County Council Legal
Services Department)
Intervener (South
Gloucestershire Council) Helen Mountfield QC
Sarah Hannett
Tamara Jaber
(Instructed by South
Gloucestershire Council
Legal Services
)
Intervener (Wiltshire
Council)
Hilton Harrop
-Griffiths
(Instructed by Wiltshire
Council Legal Services
)
Page 2
LORD CARNWATH: (with whom Lady Hale, Lord Hughes and Lord
Toulson agree)
Introduction
1. PH has severe physical and learning disabilities and is without speech. He
lacks capacity to decide for himself where to live. Since the age of four he has
received accommodation and support at public expense. Until his majority in
December 2004, he was living with foster parents in South Gloucestershire. Since
then he has lived in two care homes in the Somerset area. There is no dispute about
his entitlement to that support, initially under the Children Act 1989, and since his
majority under the National Assistance Act 1948. The issue is: which authority
should be responsible?
2. This depends, under sections 24(1) and (5) of the 1948 Act, on, where
immediately before his placement in Somerset, he was “ordinarily resident”. There
are three possible contenders: Wiltshire, as the authority for the area where he was
living with his family when he first went into care, and which remained responsible
for him under the 1948 Act; Cornwall, where his family have lived since 1991; or
South Gloucestershire, where he lived with his foster parents from the age of four
until his move to Somerset. The Secretary of State, acting under section 32 of the
1948 Act, decided that Cornwall were responsible. In doing so, he followed the
approach of his own published guidance on the determination of ordinary residence,
which drew on two principal authorities R v Barnet LBC, Ex p Shah [1983] AC 309,
and R v Waltham Forest, Ex p Vale (unreported, 11 February 1985). The latter is the
source of what have become known as “Vale tests 1 and 2” (described at paras 45-
46 below), the correctness of which is in issue in this appeal.
3. In judicial review proceedings brought by Cornwall, the Secretary of State’s
decision was upheld in the High Court (Beatson J), but set aside by the Court of
Appeal, who held that South Gloucestershire were responsible. The Secretary of
State and Somerset have appeals with the permission of this court. The appeals are
supported by South Gloucestershire and Wiltshire, but opposed by Cornwall.
Cornwall also disputes the Secretary of State’s jurisdiction to make the
determination. Although none of the other authorities has argued that Wiltshire
should be responsible, the court indicated at the beginning of the hearing that this
possibility should not be excluded from consideration.
4. It is regrettable that in this way so much public expenditure has been incurred
on legal proceedings. However, the amounts involved in caring for PH and others
Page 3
like him are substantial (some £80,000 per year, we were told). The legal issues are
of general importance, and far from straightforward.
The legislation
The Children Act 1989 Part III
5. Part III of the 1989 Act imposes duties on local authorities to provide support
for children and their families. By section 30(1), nothing in this Part of the 1989 Act
“shall affect any duty imposed on a local authority by or under any other enactment”.
Section 17 is a general duty of authorities to safeguard and promote the welfare of
children in need who are in their area. Section 20 deals with provision of
accommodation. By section 20(1), every local authority is required to provide
accommodation “for any child in need within their area” who appears to them to
require accommodation as a result (inter alia) of –
“(c) the person who has been caring for him being prevented (whether
or not permanently, and for whatever reason) from providing him with
suitable accommodation or care.”
By section 22 the local authority have a duty to promote and safeguard the welfare
of a child who is provided with accommodation under section 20 (and is thus
“looked after” by them). One of the ways in which the necessary accommodation
and maintenance can be provided is by placing the child in foster care (section 22C).
6. Although under the 1989 Act the primary duty lies with the authority in
whose area the child happens to be, “ordinary residence” also has a part to play. By
section 20(2), where a local authority provides accommodation under subsection (1)
for a child who is “ordinarily resident” in the area of another local authority, that
other local authority may following notification “take over” the provision of
accommodation for the child. Section 29 provides for recoupment of costs. By
section 29(7), where a local authority provide accommodation under section 20(1)
for a child who, immediately before they began to look after him, was “ordinarily
resident” within the area of another local authority, they may recover from that other
authority the reasonable expenses of accommodation and maintenance. By section
30(2) any question arising under these provisions as to the ordinary residence of a
child is to be determined by agreement between the local authorities or, in default
of agreement, by the Secretary of State. By section 105(6):
Page 4
“In determining the ‘ordinary residence’ of a child for any purpose of
this Act, there shall be disregarded any period in which he lives in any
place –
…
(c) while he is being provided with accommodation by or
on behalf of a local authority.”
7. Under section 23C the authority’s duties to children maintained under the
1989 Act (referred to as “former relevant children”) continue to a limited extent after
majority, generally until the age of 21 (section 23C(6)). The authority have a
continuing duty to provide for such a child various specific forms of support (not
relevant in this case) and (by section 23C(4)(c)) “other assistance, to the extent that
his welfare requires it …”. They should also have prepared a “pathway plan”
indicating the support to be provided (sections 22B, 22E).
National Assistance Act 1948
8. Section 21 of the NAA provides:
“A local authority may with the approval of the Secretary of State, and
to such extent as he may direct shall, make arrangements for providing
…
(a) residential accommodation for persons aged eighteen or
over who by reason of age, illness, disability or any other
circumstances are in need of care and attention which is not
otherwise available to them.”
By subsection (5) references to accommodation are references to accommodation
provided under this and the five next following sections, and include references to
board and other services, amenities and requisites provided in connection with the
accommodation. By subsection (8):
“Nothing in this section shall authorise or require a local authority to
make any provision authorised or required to be made … by or under
any enactment not contained in this Part of this Act …”
Page 5
9. By section 24(1) the duty falls generally on the authority in whose area the
person is “ordinarily resident”. Section 24(3) enables an authority to provide
accommodation to someone urgently in need of it even though not ordinarily
resident in the area. By section 24(5):
“Where a person is provided with residential accommodation under this
Part of this Act, he shall be deemed for the purposes of this Act to
continue to be ordinarily resident in the area in which he was ordinarily
resident immediately before the residential accommodation was
provided for him.”
By section 29(1) a local authority may, and shall if directed, make arrangements for
promoting the welfare of certain categories of persons “ordinarily resident” in their
area, including those who “suffer from mental disorder of any description”. Certain
specific forms of assistance are described in the section, but without prejudice to the
generality of the power. The Secretary of State has made directions (under circular
LAC (93)10) which have the general effect of turning these powers into duties, and
also sets out in some detail the nature of the arrangements which have to be made.
10. By section 32(3) –
“any question arising under this Part as to a person’s ordinary
residence shall be determined by the Secretary of State …”
The procedure for such a determination is governed by the Ordinary Residence
Disputes (National Assistance Act 1948) Directions 2010 (made under sections
21(1) and 29(1) of the 1948 Act). Article 2 deals with provision of services under
Part III pending determination. The dispute must not be allowed to “prevent, delay
or otherwise adversely affect” the provision of services; one of the authorities in
dispute must provisionally accept responsibility pending determination; and, if they
are unable to agree, the local authority in whose area the subject is living must do
so. The authority providing provisional service is the “lead local authority” and as
such must “identify all the local authorities in dispute and co-ordinate discussions
between those authorities in an attempt to resolve the dispute” (article 3(2)).
The Secretary of State’s guidance
11. Before turning to the determination in the present case, it is convenient to
refer to the relevant parts of the Secretary of State’s guidance, which address the
problem of defining ordinary residence of a person who is unable to make decisions
for himself. As already noted, this is done by reference in part to the “Vale tests 1
Page 6
and 2” (paras 31-34). Of the first, which treats a mentally disabled person in the
same way as “a small child who was unable to choose where to live”, the guidance
says:
“… the approach set out in test one of Vale may not always be
appropriate and should be used with caution: its relevance will vary
according to the ability of the person to make their own choices and
the extent to which they rely on their parents or carers. This Vale test
should only be applied when making decisions about ordinary
residence cases with similar material facts to those in Vale.”
12. Of test 2, it says:
“34. The alternative approach involves considering a person’s ordinary
residence as if they had capacity. All the facts of the person’s case
should be considered, including physical presence in a particular place
and the nature and purpose of that presence as outlined in Shah, but
without requiring the person themselves to have adopted the residence
voluntarily …”
13. Later paragraphs go into more detail in relation to “young people in transition
from children’s services to adult services”:
“147. Although the provisions of the 1989 Act no longer apply once a
young person reaches 18 (other than the leaving care provisions, if the
young person is eligible for such services), local authorities could
reasonably have regard to the 1989 Act and start from a presumption
that the young person remains ordinarily resident in the local authority
that had responsibility for them under the 1989 Act. Section 105(6) of
the 1989 Act provides that, in determining the ordinary residence of a
child for any purposes of that Act, any period in which a child lives in
the following places should be disregarded:
…
while he is being provided with accommodation by or on behalf of a
local authority.
148. Therefore, where a local authority has placed a child in
accommodation out of area under the 1989 Act, that local authority
Page 7
remains the child’s place of ordinary residence for the purposes of the
1989 Act. In such a case, there would be a starting presumption that
the young person’s place of ordinary residence remains the same for
the purposes of the 1948 Act when they turn 18.
149. However, this starting presumption may be rebutted by the
circumstances of the individual’s case and the application of the Shah
or Vale tests (see Part 1 of this guidance). Under these tests, a number
of factors should be taken into account when considering a person’s
ordinary residence for the purposes of the 1948 Act. These include:
the remaining ties the young person has with the authority that was
responsible for their care as a child, ties with the authority in which
they are currently living, the length and nature of residence in this area
and the young person’s views in respect of where he/she wants to live
(if he/she has the mental capacity to make this decision). If the young
person is being provided with residential accommodation under Part
3 of the 1948 Act at the time ordinary residence falls to be assessed,
the deeming provision in section 24(5) applies and it would be
necessary to assess their place of ordinary residence immediately
before such accommodation was provided.
150. In many cases, establishing a young person’s local authority of
ordinary residence will be a straightforward matter. However,
difficulties may arise where a young person has been placed in
residential accommodation out of area as a child under the 1989 Act.
In this situation, the young person may be found to be ordinarily
resident in the local authority that had responsibility for them under
the 1989 Act, or they may be found to have acquired a new ordinary
residence in the area in which they are living, depending on the facts
of their case ….”
Facts
14. PH was born on 27 December 1986. In 1991, PH’s parents asked Wiltshire,
in whose area they were then living, to provide accommodation for him. Acting
under section 20 of the 1989 Act, they placed him with foster parents, Mr and Mrs
B, who lived in South Gloucestershire. In November 1991, PH’s family moved to
Cornwall’s area. The parents have continued to be involved in decisions affecting
PH and he has regular contact with them.
15. In May 2001, anticipating his 18th birthday on 27 December 2004, Wiltshire
wrote to Cornwall regarding the planning of his “transition to adulthood”. They
Page 8
suggested that his ordinary residence should be taken as that of his parents, in
Cornwall. Cornwall maintained that the responsibility for managing the transition
rested, under the 1989 Act, with Wiltshire. Inconclusive correspondence on this
issue continued for more than a year. It seems to have culminated, on the legal side,
with an exchange in June 2002 in which Wiltshire were proposing a reference to the
Secretary of State to enable the matter to be resolved before his 18th birthday;
Cornwall were taking the position that a reference would be premature until a
decision had been made whether he was able to express his own wishes and a
suitable placement on that basis had been determined. Meanwhile, on the basis of
the residence of his parents in the county, Cornwall’s social services department (in
a letter of 25 July 2002) was asserting its own interest in assisting his “transition to
adult living”. It seems that Wiltshire did not again take up the issue of legal
responsibility with Cornwall until October 2005.
16. In April 2004 Wiltshire conducted an assessment and a care review. It
appeared that PH was happy and settled with his foster parents, and that they would
have been content for PH to stay with them after his 18th birthday. However, it
would not be possible for him to stay there, unless the foster placement were to be
re-registered as an adult placement. It was noted that PH’s parents visited him four
or five times a year with occasional visits to the family home usually over Christmas
and in the summer. They wanted to maintain at least the current level of contact. The
foster parents also wished to help him settle into a new place and to visit him as
regularly as possible. Continuing contact with his parents and foster parents was
regarded as vitally important. A placement within the M4/M5 corridor was therefore
thought to be best for ease of travel.
17. A care home was identified, Blackberry Hill in Somerset, where he would be
able to move around the end of the year. At the end of 2004, PH went to Cornwall
to stay with his parents for Christmas (including the day before his 18th birthday).
He returned to stay with Mr and Mrs B until 24 January 2005, when he moved to
Blackberry Hill. This placement was funded by Wiltshire on a provisional basis.
Unfortunately, the placement at Blackberry Hill did not work well for him. On 6
June 2005, he moved to Langley House, also in Somerset, where he has remained
ever since. His parents were involved in that decision. They have continued to
maintain regular telephone contact with him, and he stays with them over Christmas
and occasionally in the summer. Mr and Mrs B also keep in regular contact, now
mainly by letters and cards.
18. Wiltshire carried out a capacity assessment on 15 April 2008 which
concluded that overall and at that time, it was not considered that PH had the
capacity to make an informed choice about where he would want to live nor did he
have the communication skills for this to be expressed. There appeared to be no
evidence of any change in his intellectual abilities since 2004.
Page 9
The Dispute and the Secretary of State’s determination
19. The question of responsibility as between the three possible authorities
(Wiltshire, Cornwall and South Gloucestershire) remained unresolved for a number
of years. In August 2011, they jointly referred the dispute to the Secretary of State
for determination under section 32(3). On 22 March 2012 he issued a determination
that PH had been on 26 December 2004, treated as the relevant date, ordinarily
resident in Cornwall.
20. On the basis that the need for accommodation under section 21 of the 1948
Act arose on his 18th birthday, it was considered right to consider the question of
ordinary residence at that date.
21. The determination continued:
“19. As stated in paragraph 147 of the guidance issued by the
Department, local authorities in determining ordinary residence could
reasonably have regard to the 1989 Act and start from a presumption
that the young person remains ordinarily resident in the local authority
that had responsibility for them under the 1989 Act. …
20. … I consider that, for the purposes of the 1989 Act, [PH] was
ordinarily resident in Wiltshire. Residence while accommodation was
being provided by or on behalf of a local authority, in this case with
foster carers, would be disregarded in accordance with section
105(6)(c) of the 1989 Act.
21. The starting presumption is that [PH] remained ordinarily resident
in the area of the local authority which had responsibility for him
under the 1989 Act, namely Wiltshire. However, as para 149 of the
guidance points out, this starting point may be rebutted by the
circumstances of the case and the application of the Shah and Vale
tests. That paragraph refers to various factors that should be taken into
account in applying those tests.
22. First, I do not consider that [PH] was ordinarily resident in
Wiltshire. He had no links to the area. [PH’s] parents and siblings left
Wiltshire in November 1991, and [by December 2004] there were no
… remaining ties with Wiltshire. … The mere fact that Wiltshire was
the responsible authority for [PH] under the 1989 Act is not enough to
Page 10
affirm the presumption that he is ordinarily resident in Wiltshire from
27 December 2004.
…
24. [PH] has severe learning difficulties and lacks mental capacity to
decide where to live. … The family home in Cornwall is a place to
which [he] returns for holidays and his parents are in regular contact
by telephone. In 2004 it was the case that [his] parents visited him four
or five times a year. [His] parents have also been closely involved in
decisions made in relation to his care. … It is clear from the social
services papers that proximity to the family home and ease of travel
to and from Cornwall has been a consideration in planning the care
and support needs of [PH]. I consider that [PH’s] base is with [h]is
parents.
25. I note that Cornwall question whether the family home in Cornwall
can properly be described as a ‘base’ for [PH] given the infrequency
of his visits there. It is not merely the number or frequency of visits
that are determinative. The entirety of the relationship between [PH]
and his parents is to be taken into account, and when regard is had to
that, it is clear that [PH’s] base remained with his parents.
26. Nor do I consider that [PH’s foster parents] can, despite the years
spent caring for [PH], be treated, by analogy, as a parent, such that, in
accordance with test 1 in Vale, [PH] could be considered to have been
ordinarily resident in South Gloucestershire on 26 December 2004.
[PH’s] natural parents remained his base throughout [PH’s] placement
with [his foster parents]. His parents visited him, he stayed with them,
and they were involved with decisions regarding his care and wellbeing. I do not consider [his foster parents] to have so far replaced the
role of [PH’s] parents to be treated by analogy as [his] parents.
27. … [I]t was clear that [PH’s] remaining in South Gloucestershire
was at 26 December a temporary matter. [PH] was to remain with [his
foster parents] in South Gloucestershire only until his section 21
accommodation became available. It is clear from the papers that
continuing contact with his foster carers was considered to be
important and [they] have kept in regular contact, but this is now
mainly by letters and cards. His school, respite care and church life
were associated with this foster care placement, and ceased once he
Page 11
removed to the accommodation provided under section 21 of the 1948
Act.”
22. For these reasons the Secretary of State determined that as at the relevant
date, taken as 26 December 2004, PH was ordinarily resident in the area of Cornwall.
The court proceedings
23. The decision was upheld by Beatson J who, after a careful review of the
authorities, held that the Secretary of State’s reasoning disclosed no error of law. In
summary, he concluded:
“The Secretary of State examined … whether there was a real
relationship between PH and his natural parents and whether they
were in fact making relevant decisions. He was entitled to take account
of that and … of the ‘entirety of the relationship between [PH] and his
parents’. As part of that, he was also entitled to take account of the
time spent by PH with them in Cornwall. …
The process of determining that PH was ordinarily resident in
Cornwall may appear artificial. There would, however, have been a
similar artificiality in determining that he was ordinarily resident in
any of the other counties under consideration …” (paras 87-89)
24. The Court of Appeal disagreed. Elias LJ (with whom the rest of the court
agreed) gave the leading judgment. He took account of authorities since Shah,
including Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57; [2002] 1
AC 547 and A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1.
In the former (at para 18) Lord Slynn had said of “words like ‘ordinary residence’
and ‘normal residence’” that, while they may take their precise meaning from the
legislative context, the starting point is where at the relevant time the person “in fact
resides”, in the sense of the place where (voluntarily) he “eats and sleeps”, regardless
of the reason. In the latter the Supreme Court held that, in determining the “habitual
residence” of a child for the purpose of the Brussels II Regulation revised and the
Hague Convention, the Shah test should not be followed, the search being rather for
the place which reflects “some degree of integration by the child into the social and
family environment”, the intentions of the parents being no more than one relevant
factor; in the majority’s view (Lord Hughes disagreeing on this point) physical
presence was a necessary element.
Page 12
25. Against this background, Elias LJ held that, although the Secretary of State
had carefully considered the facts, he had wrongly applied the Vale test “as if it were
a rule of law”. He proceeded on the basis that section 105(6), which required the
placement in South Gloucestershire to be disregarded for the purposes of the 1989
Act, applied only for the purposes of that Act, not the 1948 Act (citing by way of
analogy R (Hertfordshire County Council) v Hammersmith and Fulham LBC [2011]
EWCA Civ 77; [2011] PTSR 1623, 32). Accordingly, the fact that he had for a long
time lived with foster parents in South Gloucestershire was a relevant factor to
consider when assessing his ordinary residence at that time (para 35).
26. He criticised the decision-maker’s use of the term “base” (following Lord
Denning MR in In re P (GE) (An infant) [1965] Ch 568) to describe PH’s
relationship to his parents’ home:
“… Even if that is a helpful concept, I do not accept that Cornwall
could properly be so described. It was not a place where PH had any
settled residence at all; it was simply a place which he occasionally
visited for holidays. His parents visited him in South Gloucestershire
more frequently than he visited them in Cornwall. PH’s parents’ house
was not, to use Lord Denning’s phrase, ‘a place from whence he goes
out and to which he returns.’ Indeed, in so far as it is helpful to adopt
the concept of his base at all, this was surely South Gloucestershire. It
was there where he lived day by day; it was from there that he left on
his very occasional visits to Cornwall and to which he returned; and it
was there that he received the visits from his parents.” (para 76)
27. He held further that it was unnecessary to remit the matter for redetermination
by the Secretary of State:
“Looking at the facts as at PH’s 18th birthday, there was in my
judgment only one conclusion properly open to the Secretary of State.
PH’s place of ordinary residence was South Gloucestershire. It could
not be Wiltshire, because he ceased to have any connection with it at
all. At that stage he had never lived in Somerset and had no connection
with it. And for reasons I have given, the mere fact that his parents’
place of ordinary residence was in Cornwall could not justify finding
that to be PH’s place of ordinary residence.” (para 85)
Page 13
Preliminary issues
28. Before turning to the main substantive issue, it is necessary to consider two
preliminary issues raised by Mr Lock QC on behalf of Cornwall, for the first time
in the court proceedings. Although no objection has been taken to this course, I
would wish to reserve my position as to its appropriateness in the context of a
statutory power intended to encourage co-operation and lack of technicality.
29. He submits, first, that under section 21 there is power to make provision of
residential care services only if it is “not otherwise available” (section 21(1)(a)), and
if it is not “authorised or required to be made … by or under any enactment not
contained in this Part of this Act”. In the three years following PH’s 18th birthday,
so it is said, Wiltshire’s powers to provide “assistance” under section 23C of the
1989 Act were wide enough to cover all the services in fact provided for him during
that period. There was therefore no place for section 21. It follows that there was at
that date no question as to his ordinary residence under the Act requiring
determination by the Secretary of State, and his decision was made without
jurisdiction. Secondly, for good measure, he submits that Wiltshire itself had no
power at all to incur expenditure under the 1948 Act, and no right to seek to recoup
it from any other authority. At the time of PH’s majority, he was not within their
area, and there was no basis for treating him as ordinarily resident there, his only
practical connection with the county through his parents having been severed some
14 years before.
30. These arguments were rejected by Beatson J and by the Court of Appeal.
Without disrespect to the persistent arguments of Mr Lock QC in this court, I have
no doubt that they were right to do so. I would have been content to adopt their
reasoning. But there are, in my view, two short answers. The first concerns the
nature of the powers, the second timing. The argument only works if there is identity
between the two sets of powers. In my view there is not. Part III of the 1948 Act
provides the exclusive statutory basis for securing the long term care and
accommodation which PH needs and has needed since his majority. That is not
displaced by the relevant provisions of the 1989 Act, which are transitional in
character. I would not wish to place artificial restrictions of the types of assistance
which may be provided if necessary under section 23C. However, their purpose is,
not to supplant the substantive regime, but to ease the transition (usually) to adult
independence. There may of course be some overlap in some of the specific
provision made from day to day, but they are serving different ultimate purposes,
one temporary, the other long term. That potential overlap is not such in my view as
to exclude section 21(1)(a), under its own terms or by reference to section 21(8).
31. Secondly, and in any event, section 32 should in my view be read broadly in
respect of timing. Even if the need for 1948 Act provision did not arise immediately
Page 14
on PH’s 18th birthday, the nature of the dispute was already apparent, and needed
to be resolved in the immediate future to ensure a smooth transition to the new
regime. That dispute was willingly referred to the Secretary of State by the three
authorities concerned. It was obviously desirable for all parties, most particularly
PH, that it should be resolved without delay. I see no reason to read section 32 as
confined to those disputes arising in the period after the duties under the 1948 Act
have come into effect. On the contrary a purposive construction would extend it to
disputes which need to be resolved in advance, so as to enable the duties under the
Act to be exercised by the correct authority from the outset.
32. As to whether Wiltshire itself should have been excluded as a potential party
to the dispute, Mr Lock’s argument is ingenious but unrealistic. As has been seen
from the decision-determination, the Secretary of State’s starting point was a
presumption that Wiltshire, as the authority responsible under the 1989 Act, should
be treated as responsible also under the 1948 Act, unless and until displaced by
another authority under the Shah or Vale tests. Thus Wiltshire was (and still is) in
the firing-line for potential liability, and it would have been irresponsible to proceed
on any other basis. No amount of retrospective legal theorising by Cornwall can
alter that position.
Ordinary residence – the law
Background
33. The 1948 Act was designed, in the words of its long title, to “terminate the
existing poor law”, and to replace it with a new scheme for the “assistance of persons
in need” by the new National Assistance Board and by local authorities. Miss
Mountfield QC (for South Gloucestershire) has helpfully drawn our attention to the
approach under the Poor Law Act 1930 to the allocation of responsibility for the old
or infirm or those otherwise unable to work. The duty to “relieve and maintain” such
persons was placed on their “father, grandfather, mother, grandmother husband or
child …” (1930 Act section 14). They were supported by the duty of the council of
every county or county borough to “provide such relief as may be necessary” for the
same group of people (section 15(1)), that duty applying generally to “all persons
within (their area)” (section 15(2)).
34. The adoption by the 1948 Act of “ordinary residence” in this context, as the
basis for allocation of responsibility between local authorities, was a new departure.
As will be seen, a similar approach was adopted at about the same time in relation
to allocation of responsibilities between education authorities. It is noteworthy that
there was no repetition of the pre-1948 statutory duty of parents or family members
for maintenance of incapacitated adults, and no recognition even of their practical
Page 15
role in making decisions on behalf of those unable to do so for themselves. The
common law could not fill the gap (see re F (Mental Patient: Sterilisation) [1990]
2 AC 1, confirming that the parent of a mentally-disabled adult had no power at
common law to consent to a medical operation on her behalf). Even in such cases
the criterion was to be the ordinary residence of the individual, not of his parent or
family, or anyone else.
35. However, it was recognised from the outset that some modification was
required in the case of those whose current residence was the result of care decisions,
rather than their personal connections with the area in question. Thus section 24(5)
provides where a person is being provided with residential accommodation under
the Act, he is deemed for the purposes of this Act to continue to be ordinarily
resident in the area in which he was ordinarily resident immediately before the
residential accommodation was provided. This formulation left open the question
whether residence in such accommodation would otherwise have been regarded as
“ordinary residence” for the purpose of section 24 – a question to which I shall
return. In policy terms it ensured that decisions on placements, inside or outside an
authority’s area, were made solely with reference to the interests of the client,
without affecting the placing authority’s continuing responsibility for his care.
36. It is common ground that in the present context, unlike others considered in
the authorities, the subject can be “ordinarily resident” in the area of only one local
authority. Otherwise that test would not be an effective tool for allocating
responsibility for services or their cost. As Beatson J observed (para 55) this factor,
combined with what he called the “deeming” provision in section 24(5), may
sometimes lead to “artificial and arbitrary” results.
37. The ordinary residence test has proved resilient. In its 2010 Consultation
Paper on Adult Social Care (CP 192), para 8.12, the Law Commission noted that it
had been adopted in a number of care statutes but not all, and that the resulting
picture was “complex and inconsistent”. However, it was not part of their remit to
consider the meaning of the expression, nor whether it was the most effective way
of determining which local authority is responsible for the provision of services. In
their final report (Law Commission Report: Adult Social Care (2011) Law Com
326), they declined invitations from consultees to extend their remit to these issues,
regarding them as “matters for political policy and not law reform” (para 10.11).
38. Nonetheless, in their proposals for a single adult care statute they
recommended that ordinary residence should continue to be the primary criterion of
responsibility for all community care services (para 10.9). The Care Act 2014, which
generally gives effect to their proposals, adopts the criterion of ordinary residence.
The basic definition may be made subject to exceptions, to be defined by regulations,
for placements in specified types of care accommodation, the effect of which is to
Page 16
substitute reference to the area of ordinary residence before the placement began, or
the beginning of the period of consecutive placements of specified types (section
39).
The authorities on “ordinary residence”
39. At the time of the 1948 Act, most prior case-law on the meaning of the
expression “ordinary residence” related to income tax. Liability depended on
whether a person was resident or ordinarily resident in the United Kingdom for a
particular tax year. In that context it had long been established that a person could
be ordinarily resident in two places. This approach was affirmed by the House of
Lords in two well-known cases reported in 1928: Levene v Inland Revenue Comrs
[1928] AC 217 and Inland Revenue Comrs v Lysaght [1928] AC 234. In an earlier
case, Cooper v Cadwalader (1904) 5 Tax Cases 101, an American resident in New
York, who had taken a house in Scotland which he visited for two months each year,
was held to be resident and ordinarily resident in the United Kingdom for tax
purposes for each such year. It mattered not that for other purposes he might be
treated as ordinarily resident in New York. As Viscount Sumner later observed
“Who in New York would have said of Mr Cadwalader ‘his home’s in the
Highlands; his home is not here’?” (Lysaght at p 244).
40. The House of Lords confirmed that approach and reached the same
conclusions on the facts of the two cases in the 1928 Reports. Mr Levene lived
abroad, but returned each year for about five months for the purpose of obtaining
medical advice, visiting relatives and other matters. Mr Lysaght lived in Ireland, but
returned to England each month for business purposes, remaining for about a week
and usually staying in a hotel. In both cases the Special Commissioners had been
entitled to hold that they were resident and ordinarily resident in this country.
41. Those authorities were followed in the leading modern authority on the
meaning of the expression in a statutory context. That is the speech of Lord Scarman
in R v Barnet LBC, Ex p Shah [1983] AC 309. The question was whether four foreign
students qualified for an education grant on the basis that they had been “ordinarily
resident” in the United Kingdom “throughout” the three years preceding the first
year of their course. The authorities had argued that their ordinary residence, in the
sense of their “real home”, was elsewhere. The House disagreed. Lord Scarman, in
the leading speech, treated the tax cases as authority for the “natural and ordinary
meaning” of the expression. In particular he cited Viscount Sumner’s reference to
“ordinary” residence as “that part of the regular order of a man’s life, adopted
voluntarily and for settled purposes …” (Lysaght p 243). Lord Scarman echoed those
words in his own statement of the natural and ordinary meaning of the term:
Page 17
“Unless, therefore, it can be shown that the statutory framework or the
legal context in which the words are used requires a different meaning,
I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers
to a man’s abode in a particular place or country which 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 of long duration.” (p 343GH)
The “mind” of the subject was relevant in two respects. First the residence must be
“voluntarily adopted”, rather than for example “enforced presence by reason of
kidnapping or imprisonment”. Secondly, there must be “a degree of settled
purpose”:
“This is not to say that the (subject) intends to stay where he is
indefinitely; indeed his purpose, while settled, may be for a limited
period. … All that is necessary is that the purpose of living where one
does has a sufficient degree of continuity to be properly described as
settled.” (p 344D)
A “settled” purpose did not need to be indefinite. “Education, business or profession
… or merely love of a place” could be enough. There was no justification for
substituting a “real home test”, as the councils had argued (p 345B).
42. Although understandably this passage has been often quoted and relied on in
later cases, the weight given to the concept of a “settled purpose” needs to be seen
in context. The focus of the passage was to explain why the undoubted residence of
the claimants in this country for the necessary period, albeit for the temporary
purpose of education, was sufficiently settled to qualify as “ordinary” under the
accepted meaning. It was relevant therefore to show that it was no less settled than,
for example, the residence of Mr Cadwalader during his annual visit to Scotland, or
that of Mr Levene on his five-month visit for medical and other reasons. Nor did it
matter, it seems, that they might have had other “ordinary” residences in their
countries of origin.
43. As Mr Sheldon QC (for the Secretary of State) points out, Lord Scarman
made reference, albeit by way of contrast, to provisions in the same legislation for
allocating financial responsibility between education authorities, which are not
dissimilar to those now in issue. Lord Scarman referred to provisions for allocation
as between authorities in Education (Miscellaneous Provisions) Act 1953 section 7,
Education Act 1962 section 1(7), and section 31 of the Education Act 1980 section
31 (see Shah pp 338F, 340B)). They had contained a formula, for recoupment of
costs as between education authorities, based in part on “ordinary residence”, and
Page 18
under which disputes were to be determined by the Minister or Secretary of State.
(Similar provisions can be traced back to the same time as the 1948 Act: see
Education (Miscellaneous Provisions) Act 1948 section 6.) The parallel is not
necessarily exact. For example, the 1962 Act contained a schedule dealing with
“ordinary residence” (applied by 1962 Act section 1(7)), in which the primary test
was linked with a discretionary power in certain circumstances for the Secretary of
State to impose a different result by direction. Lord Scarman described such
provisions as “administrative and fiscal …” in character, by contrast with the
“justiciable” issue before the House. He noted, without expressing an opinion, the
possibility that in that context “ordinary residence” might have –
“… a special meaning when the distribution of the fiscal burden
between local education authorities is being considered as a matter for
the exercise of executive decision by the Secretary of State” (p 340BG).
This is helpful as illustrating that the meaning of the term ordinary residence may
be strongly influenced by the particular statutory context. However, it is common
ground as I understand it that in the present context, once properly construed, the
issue for the Secretary of State was one of factual judgement rather than executive
discretion, and that his decision is “justiciable”, in the sense that it is reviewable by
the courts on ordinary Wednesbury principles.
44. Another authority relied on by the Secretary of State, again from a very
different area of the law, is In re P (GE) (An infant) [1965] Ch 568. The Court of
Appeal (applying the analogy of the law of treason) decided that the wardship
jurisdiction of the Court of Chancery extended to any child “ordinarily resident” in
this country. Lord Denning MR spoke of the ordinary residence of “a child of tender
years who cannot decide for himself where to live”:
“So long as the father and mother are living together in the
matrimonial home, the child’s ordinary residence is the home – and it
is still his ordinary residence, even while he is away at boarding
school. It is his base, from whence he goes out and to which he returns
…” (p 585)
This is the source of the word “base”, used in Vale and in the Secretary of State’s
guidance, as indicative of ordinary residence. However, it is important again to see
it in context. There is nothing to suggest that Lord Denning MR was intending to
separate the idea of a “base” from the need for physical residence of some kind. The
underlying assumption seems to have been that the child would be living at his
Page 19
parent’s home for the parts of the year when he was not at school, and would remain
“ordinarily” so resident throughout.
45. Shortly after the Shah judgment, in R v Waltham Forest London Borough
Council, Ex p Vale (unreported, 11 February 1985), Taylor J had to consider a case
much closer to the present, involving the application of the ordinary residence test
under the 1948 Act to someone mentally incapable of forming a settled intention
where to live. Judith, an English woman, had been in residential care in Ireland for
over 20 years where her parents had been living. When her parents returned to
England, it was decided that she should return to live near them. She stayed with
them at their house in Waltham Forest for a few weeks while a suitable residential
home was being found, and she was then placed in a home in Buckinghamshire. The
shortfall in costs (so far as not borne by the Department of Health and Social
Security) was sought from Waltham Forest on the grounds that she was “ordinarily
resident” in the borough.
46. The case was argued and decided by reference to the Shah test of ordinary
residence, adapted for the case of someone lacking the power to form for herself a
settled intention where to live. Taylor J adopted a two-part approach suggested by
counsel, but on either approach he considered that her residence with her parents
could be treated as sufficiently settled to satisfy the Shah test. The result is
unremarkable, but in view of the weight later given (particularly in the Secretary of
State’s guidance) to “Vale tests 1 and 2”, it is right to quote the judge’s own words.
For the first approach he made reference to Lord Denning MR’s concept of a child’s
“base”:
“Where the (subject) … is so mentally handicapped as to be totally
dependent upon a parent or guardian, the concept of her having an
independent ordinary residence of her own which she has adopted
voluntarily and for which she has a settled purpose does not arise. She
is in the same position as a small child. Her ordinary residence is that
of her parents because that is her ‘base’, to use the word applied by
Lord Denning in the infant case cited.” (emphasis added)
The alternative approach, considering her as if she were a person of normal mental
capacity, led to the same result:
“I cannot accept that during the relevant month Judith should be
regarded as a squatter in her parents’ home. Her residence there had,
in my judgment, all the attributes necessary to constitute ordinary
residence within Lord Scarman’s test, albeit for a short duration.”
Page 20
47. There is no reason to quarrel with Taylor J’s conclusion on the unusual facts
of the case. In circumstances where her only previous residence had been in Ireland,
there was obvious sense in treating her few weeks living with her parents as
sufficiently settled to meet the Shah test, whether by reference to the intentions of
those making decisions on her behalf, or to the “attributes” of the residence
objectively viewed. With hindsight, it was perhaps unhelpful to elide the Shah test
with the idea of a “base”, used by Lord Denning MR in a different context and for a
different purpose. The italicised words in the first passage quoted above cannot be
read as supporting any more general proposition than that Judith’s ordinary
residence was to be equated with that of her parents, without reference to the period
of her own actual residence with them. Nor in my view should Taylor J’s two
approaches be treated as separate legal tests. Rather they were complementary,
common-sense approaches to the application of the Shah test to a person unable to
make decisions for herself; that is, to the single question whether her period of actual
residence with her parents was sufficiently “settled” to amount to ordinary
residence.
48. Most subsequent authorities on the issue of ordinary residence in the context
of social services have relied on these authorities, without detailed discussion. The
Court of Appeal also referred to authorities on other comparable expressions
(“normal residence”, “habitual residence”) in other statutes. Without disrespect to
the high authority of the statements quoted, their interpretation is a doubtful guide
to the different language used in the provisions before us, and cannot in any event
be considered without regard to the different statutory contexts in which they appear.
As was pointed out by Lady Hale in A v A (above, at para 24) the phrase “habitual
residence” was adopted in family legislation partly to distinguish it from ordinary
residence as used in the taxation and immigration context.
Ordinary residence in the present case
49. I agree with the Court of Appeal that the decision-maker’s reasons for
selecting Cornwall cannot be supported. The writer started, not from an assessment
of the duration and quality of PH’s actual residence in any of the competing areas,
but from an attempt to ascertain his “base”, by reference to his relationships with
those concerned. Thus in deciding that the family home in Cornwall could properly
be described “as a ‘base’ for [PH]” notwithstanding the infrequency of his visits, the
determination stated that it was necessary to consider “not merely the number or
frequency of visits [but] … the entirety of the relationship between [PH] and his
parents …”. There is no suggestion that his brief periods of staying with his parents
at holiday times could in themselves amount to ordinary residence.
Page 21
50. Mr Sheldon seeks to support this approach by reference to the guidance and
the authorities there relied on. He submits that, in the case of a person who is unable
to make decisions for himself, it is necessary to determine –
“the place which most appropriately represents at the material time,
the seat of the person’s decision-making power given his lack of
capacity to make decisions where to live, the coming to an end of a
placement under the 1989 Act, and the extent to which his parents (or
those in loco parentis) can and will make the relevant decisions on his
behalf.”
Miss Mountfield QC is even more explicit, submitting that it is right in principle to
look “to the ordinary residence of the decision-maker in deciding the ordinary
residence of a person who lacks capacity”.
51. There might be force in these approaches from a policy point of view, since
they would reflect the importance of the link between the responsible authority and
those in practice representing the interests of the individual concerned. They are
however impossible to reconcile with the language of the statute, under which it is
the residence of the subject, and the nature of that residence, which provide the
essential criterion. In so far as Vale is relied on to substitute an alternative test, based
on “the seat of (his) decision-making”, or otherwise on his relationship with his
parents and their home, it depends on a misunderstanding of that judgment. The seat
of the decision-making power in relation to a mentally disabled adult is the authority
making the placement (subject to any contrary determination by the Court of
Protection), not the parents. For the same reason, the weight put by the decisionmaker on the so-called Vale tests 1 and 2, both in the guidance and in the decisiondetermination, was in my view misplaced.
52. The more difficult issue is to make a principled choice between the two
alternatives – South Gloucestershire or Wiltshire. Applying the Shah tests without
qualification it is easy to understand why the Court of Appeal chose the former. If
one asks where was PH’s ordinary residence in the period immediately before his
move to Somerset, an obvious answer for many purposes would be his home with
his carers. That is where he had lived happily for some fourteen years. On an
objective view it might be thought sufficiently “settled” to meet Lord Scarman’s
test, regardless of whether PH himself took any part in the decision-making. The
Secretary of State rejected this alternative solely because he did not think that the
foster parents had “so far replaced the role of [PH’s] parents to be treated by analogy
as [his] parents” under the Vale tests. For the reasons I have given this involved a
misunderstanding of the reasoning in Vale. If the question is whether the residence
of PH himself was sufficiently settled to satisfy the Shah test, the precise status of
Page 22
his foster-parents was irrelevant. On this point the intentions and perceptions of his
parents and his foster-parents were identical.
53. However, although the choice of South Gloucestershire may fit the language
of the statute, it runs directly counter to its policy. The present residence in Somerset
is ignored because there is no connection with that county other than a placement
under the 1948 Act. By the same policy reasoning, South Gloucestershire’s case for
exclusion would seem even stronger. There is no present connection of any kind
with that county, the only connection being a historic placement under a statute
which specifically excluded it from consideration as the place of ordinary residence
for the purposes of that Act.
54. The question therefore arises whether, despite the broad similarity and
obvious underlying purpose of these provisions (namely that an authority should not
be able to export its responsibility for providing the necessary accommodation by
exporting the person who is in need of it), there is a hiatus in the legislation such
that a person who was placed by X in the area of Y under the 1989 Act, and remained
until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to
be regarded on reaching that age as ordinarily resident in the area of Y for the
purposes 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.
55. It is highly undesirable that this should be so. It would run counter to the
policy discernable in both Acts that the ordinary residence of a person provided with
accommodation should not be affected for the purposes of an authority’s
responsibilities by the location of that person’s placement. It would also have
potentially adverse consequences. For some needy children with particular
disabilities the most suitable placement may be outside the boundaries of their local
authority, and the people who are cared for in some specialist settings may come
from all over the country. It would be highly regrettable if those who provide
specialist care under the auspices of a local authority were constrained in their
willingness to receive children from the area of another authority through
considerations of the long term financial burden which would potentially follow.
56. The Court of Appeal (para 35), apparently without argument to the contrary,
proceeded on the basis that the “deeming” provision under each statute applied only
for the purposes of its own Act. Elias LJ cited R (Hertfordshire County Council) v
Hammersmith and Fulham LBC [2011] EWCA Civ 77; [2011] PTSR 1623, in which
the court held that section 24(5) was a self-contained provision. However, the court
was there faced with a rather different argument, which depended on reading the
Mental Health Act 1983 section 117 (in which responsibility was based on
“residence” without any deeming provision) as though it had the same meaning as
Page 23
ordinary residence under section 24. The court (para 45) rejected that argument, not
only because it was inconsistent with the statute, but also because it was constrained
by higher authority to hold that section 117 was a free-standing provision not
dependent on the 1948 Act.
57. In construing the relevant words in section 24 of the 1948 Act, the statutory
context is critical. The purpose of the provision is purely “administrative and fiscal”,
to borrow Lord Scarman’s phrase in R v Barnet London Borough Council, Ex p Shah
(see para 43 above). It does not affect the rights of the person concerned, but only
the allocation of responsibility as between local authorities. Lord Scarman
recognised the possibility that such a context might justify a different approach as
compared to one directed to a person’s entitlement to a benefit. In this respect the
function of the relevant provisions in each Act is the same.
58. Section 24(5) poses the question: in which authority’s area was PH ordinarily
resident immediately before his placement in Somerset under the 1948 Act? In a
case where the person concerned was at the relevant time living in accommodation
in which he had been placed by a local authority under the 1989 Act, it would be
artificial to ignore the nature of such a placement in that parallel statutory context.
He was living for the time being in a place determined, not by his own settled
intention, but by the responsible local authority solely for the purpose of fulfilling
its statutory duties.
59. In other words, it would be wrong to interpret section 24 of the 1948 Act so
as to regard PH as having been ordinarily resident in South Gloucestershire by
reason of a form of residence whose legal characteristics are to be found in the
provisions of the 1989 Act. Since one of the characteristics of that placement is that
it did not affect his ordinary residence under the statutory scheme, it would create
an unnecessary and avoidable mismatch to treat the placement as having had that
effect when it came to the transition in his care arrangements on his 18th birthday.
60. On this analysis it follows that PH’s placement in South Gloucestershire by
Wiltshire is not to be regarded as bringing about a change in his ordinary residence.
Throughout the period until he reached 18 he remained continuously where he was
placed by Wiltshire, under an arrangement made and paid for by them. For fiscal
and administrative purposes his ordinary residence continued to be in their area,
regardless of where they determined that he should live. It may seem harsh to
Wiltshire to have to retain indefinite responsibility for a person who left the area
many years ago. But against that there are advantages for the subject in continuity
of planning and financial responsibility. As between different authorities, an element
of arbitrariness and “swings and roundabouts” may be unavoidable.
Page 24
61. For these reasons, I would allow the appeals and in the declaration made by
the Court of Appeal for references to South Gloucestershire I would substitute
references to Wiltshire.
LORD WILSON: (dissenting)
62. My colleagues consider that, in making his determination under section 32(3)
of the National Assistance Act 1948 (“the 1948 Act”) of the place of PH’s ordinary
residence on 26 December 2004 for the purpose of section 24(1) of the same Act,
the Secretary of State could lawfully have reached only one conclusion. It is,
according to them, that on that date, which was the day prior to his 18th birthday,
PH was ordinarily resident in a county (Wiltshire):
a) in which in May 1991, ie about 13 years earlier, he had ceased to live
upon his removal to live with the foster parents in South
Gloucestershire;
b) to which, during the following 13 years, he never returned, not even
just to stay overnight;
c) in which in November 1991, ie also about 13 years earlier, his parents
had ceased to live upon their removal to live in Cornwall;
d) in which by 1997, ie about seven years earlier, both sets of his
grandparents had, in one case because of relocation and in the other
because of death, ceased to live; and
e) in which, from 1997 onwards until many years after 26 December
2004, no home remained available, even in principle, for his
occupation.
63. Such is a conclusion to which, with great respect to my colleagues, I do not
subscribe. It is a conclusion for which no party has contended at any stage of these
proceedings. A court should tread cautiously before favouring a solution devised
only by itself, particularly where, as here, it has been addressed by an array of
excellent counsel instructed by public authorities widely experienced in this area of
the law.
Page 25
64. I agree that there was only one conclusion which the Secretary of State could
lawfully have reached. But, so I consider, his conclusion should have been that on
26 December 2004 PH was ordinarily resident in South Gloucestershire. So I believe
that the order of the Court of Appeal was correct.
65. I must squarely confront the problem. There appear to be strong reasons of
public policy which militate in favour of imposing upon Wiltshire, rather than upon
South Gloucestershire, the obligation of making decisions about a suitable
placement of PH following his 18th birthday and of funding whatever placement
may thereafter be suitable for him from time to time. It would be a heavy financial
burden for Wiltshire but its burden in the case of PH would be borne to the same
extent by some other local authority in a reverse situation: in other words the burdens
should even out. Public policy suggests:
a) that it is desirable that a local authority which has exercised the decisionmaking power (and has borne the funding burden) in relation to the placement
of a mentally incapacitated minor should, in the light of its knowledge of his
needs, continue to exercise that power (and bear that burden) following the
attainment of his majority; and
b) that it is undesirable that a local authority which is exercising the decisionmaking power (and bearing the funding burden) in relation to the placement
of an incapacitated minor should, while he remains a minor, be able to place
him in a suitable facility in the area of another local authority (indeed, in the
case of a private placement, without the consent of that local authority), with
the result that, following the attainment of his majority, the decision-making
power and, in particular, the financial burden should fall upon that other local
authority. In the present case, for example, the evidence suggests that
Wiltshire’s placement of PH in 1991 with his excellent specialist foster
parents did not in any way involve the local authority of South
Gloucestershire, which for the following 13 years appears to have played no
part in directing or securing his care. Yet, on my analysis, it is South
Gloucestershire which should thereafter have begun to exercise the decisionmaking power and, in particular, to bear the financial burden. The Secretary
of State accepts that, of the young people who move from being looked after
by local authorities as minors to being provided with accommodation by them
as adults, those lacking capacity are only a small proportion. But he explains
convincingly that, in the light of their specialised needs, the cost of
maintaining them indefinitely is very high. He proceeds to identify real
concerns that a few local authorities might therefore be motivated (to use the
crude shorthand which, only for convenience, has been deployed in the
hearing before this court) to “export” such a minor to the area of another local
authority prior to the attainment of his majority; and equally that, were that
other local authority to be the administrator of a specialist resource entirely
Page 26
suitable to the needs of a minor, it might nevertheless be motivated to refuse
him admission to it for fear of the financial consequences following the
attainment of his majority.
66. But such is the result which in my view the law, as it stands, clearly compels.
I am not a legislator. Nor, with respect, are my colleagues.
67. When, by section 24(1) of the 1948 Act, it decided to identify the local
authority responsible for making the provision specified by the Act by reference to
a person’s “ordinary residence” in its area, Parliament deployed a well-known
phrase. The courts confidently assume that, in deploying a phrase, Parliament
understands the meaning which the courts have ascribed to it: Regina v G [2003]
UKHL 50, [2004] 1 AC 1034, at p 1059 (Lord Steyn). No doubt Parliament
understands that in the future the courts may refine and develop their interpretation
of a phrase. Subject to that, however, Parliament in 1948 intended that the courts
should construe the phrase in section 24(1) by reference to its established meaning.
Furthermore, insofar as the courts might encounter any difficulty in applying every
aspect of its established meaning to any person entitled to provision under the Act,
for example to a mentally incapacitated person, Parliament no doubt intended that
the courts should, albeit only to the necessary extent, adapt their interpretation of
the phrase. To that extent the framework in which Parliament set the phrase might
require the courts to ascribe to it a somewhat different meaning.
68. In 1948 the established meaning of the phrase “ordinary residence” was that
which the House of Lords had ascribed to it in the Levene and Lysaght cases cited
by Lord Carnwath at para 39 above. In the former Viscount Cave LC had stated at
p 225 that it meant “residence in a place with some degree of continuity and apart
from accidental and temporary absences”. In the latter Viscount Sumner had stated
at p 243 that “the converse to ‘ordinarily’ is ‘extraordinarily’ and that part of the
regular order of a man’s life, adopted voluntarily and for settled purposes, is not
‘extraordinary’”.
69. In the Shah case, cited by Lord Carnwath at para 41 above, Lord Scarman, at
p 341, quoted both these statements; and it can be seen that his classic definition of
the phrase “ordinary residence”, set out by Lord Carnwath, was in effect no more
than an amalgamation of what Viscount Cave and Viscount Sumner had said. By
applying his definition, Lord Scarman and the other members of the committee
decided that the four foreign students, who had pursued a course of study in the UK
for the previous three years with leave to remain in the UK limited thereto, and who
aspired, with the aid of grants, to pursue courses of further education, had been
ordinarily resident in the UK throughout those three years and were therefore
entitled to the grants under the Education Act 1962. Lord Scarman noted at pp 346
and 347 that each of the lower courts had attached importance to their belief that in
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1962 Parliament would not have intended that foreign students with only limited
leave to remain in the UK should be entitled to grants by which to further their
education. He continued, at pp 347 and 348:
“My Lords, the basic error of law in the judgments below was the
failure … to appreciate the authoritative guidance given by this House
in Levene … and … Lysaght as to the natural and ordinary meaning
of the words “ordinarily resident”. They attached too much
importance to the particular purpose of the residence; and too little to
the evidence of a regular mode of life for a settled purpose, whatever
it be, whether study, business, work or pleasure. In so doing, they were
influenced by their own views of policy and by the immigration status
of the students.
The way in which they used policy was, in my judgment, an
impermissible approach to the interpretation of statutory language.
Judges may not interpret statutes in the light of their own views
as to policy.” [Bold type supplied]
70. In 1948 the jurisdiction to commit a child to the care of a local authority was
contained in section 62(1)(b) of the Children and Young Persons Act 1933 (“the
1933 Act”). No doubt Parliament could have extended the disregard in section 24(5)
of the 1948 Act so as to encompass any period in which, immediately prior to the
provision of residential accommodation to a person under Part III of that Act, he had
been in the care of a local authority under section 62(1)(b) of the 1933 Act. But it
did not do so. Equally, following the rationalisation of the provisions for taking
children into care achieved by the Children Act 1989 (“the 1989 Act”), Parliament
could have extended the disregard in section 24(5) of the 1948 Act so as to
encompass any period in which, immediately prior to the provision of such
accommodation, the person had been looked after by a local authority within the
meaning of section 22(1) of the 1989 Act. But it did not do so. By paragraph 9 of
the Schedule to the Care Act 2014 and Children and Families Act 2014
(Consequential Amendments) Order 2015, (SI 2015/914), made pursuant to section
123(2) of the Care Act 2014 (“the 2014 Act”), the application of the 1948 Act has
now been restricted to Wales. In England accommodation for adults in need of it is
now provided under the 2014 Act which, by section 39, has replaced the disregards
formerly contained in section 24 of the 1948 Act with wider disregards. But, even
now, Parliament has not chosen to include a requirement to disregard a period in
which, as a minor, the person has been looked after by a local authority within the
meaning of section 22(1) of the 1989 Act. It is instead my colleagues who have
chosen to do so.
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71. Indeed the statutory disregards, limited though they are, present another
difficulty. In para 59 above Lord Carnwath suggests that the “legal characteristics”
of the residence of a minor provided with accommodation under the 1989 Act are
such as to make it irrelevant to the determination of his ordinary residence for the
purposes of section 24(1) of the 1948 Act. But, if so, they must make it equally
irrelevant to the determination of his ordinary residence for the purposes of the 1989
Act itself, including for those of section 31(8)(a) which requires the recipient of a
care order to be the local authority within whose area he is ordinarily resident. So
then the question arises: why should Parliament, by section 105(6)(c) of the 1989
Act, have troubled to require that the period of provision of such accommodation be
disregarded? Lord Carnwath’s analysis renders the subsection redundant. More
broadly the same charge can, in my view, be levelled in relation to the disregards
provided by section 24(5) of the 1948 Act and now by section 39 of the 2014 Act,
which provide for the disregard of periods of accommodation which has legal
characteristics analogous to those of accommodation provided under the 1989 Act.
72. The Secretary of State determined that on 26 December 2004 PH was
ordinarily resident in Cornwall. I agree that his determination was unlawful.
Although clearly PH had links with Cornwall which he lacked with Wiltshire, it was
artificial to describe him as having had a “base” with his parents there; and it was
unrealistic to regard them as having continued to be the decision-makers in relation
to him. Having summarised approaches to the issue which, so counsel suggested,
favoured the identification of Cornwall as the responsible local authority under the
1948 Act, Lord Carnwath states at para 51 above:
“There might be force in these approaches from a policy point of view.
… They are however impossible to reconcile with the language of the
statute, under which it is the residence of the subject, and the nature
of that residence, which provide the essential criterion.”
I agree with Lord Carnwath’s statement which, by coincidence, encapsulates the
reasons for my own rejection of his conclusion that on 26 December 2004 PH was
ordinarily resident in Wiltshire.
73. But it is not only by a process of elimination that I conclude that PH was then
ordinarily resident in South Gloucestershire.
74. In A v A (Children: Habitual Residence), [2013] UKSC 60, [2014] AC 1, this
court determined the proper approach to an inquiry into a child’s habitual residence
for the purposes of article 8 of Council Regulation (EC) 2201/2003, namely the
Brussels II Revised Regulation. It ruled that, in the light of the identity of article 8
as a European regulation, the inquiry into a child’s habitual residence was required
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to be conducted by reference to the interpretation of the phrase favoured by the Court
of Justice of the European Union, namely to identify “the place which reflects some
degree of integration by the child in a social and family environment” and that, for
the purposes of article 8, such an inquiry was preferable to one determined by
reference to Lord Scarman’s classic definition of ordinary residence in the Shah
case: see para 54(iii) and (v) of the judgment of Lady Hale. The European approach
is plainly tailored so as to allow for the inability of most children to make decisions
for themselves and, as such, it seems well suited to an inquiry into the ordinary
residence of a mentally incapacitated person such as PH. I agree with the observation
of Elias LJ in his judgment in the present case that there is much to be said in favour
of a determination of PH’s ordinary residence by reference to a similar approach.
Were the inquiry indeed to be into the place of PH’s integration in a social and family
environment, that place would plainly be South Gloucestershire. But application of
Lord Scarman’s definition, subject to the alteration of one word required by PH’s
incapacity, yields the same conclusion. For on 26 December 2004 South
Gloucestershire represented the abode which he had adopted for settled purposes as
part of the regular order of his life for the time being. The word which requires
alteration is “voluntarily”. PH did not adopt his abode in the foster home
“voluntarily”. But, as the Secretary of State recorded in his determination, PH was
very happy and settled in the foster home and had to leave it only because it was not
possible for the foster parents to accommodate an adult under the 1948 Act while
continuing to foster children under the 1989 Act. One may confidently infer that,
had he had capacity, PH would have adopted his abode in the foster home
voluntarily. In the light of his incapacity, however, the context requires a modest
replacement of the word “voluntarily” with the word “contentedly” and, on that
basis, his ordinary residence in South Gloucestershire is again plainly established.
75. I therefore take the view that both of these appeals should be dismissed.
