This was a case concerning the approach to assessing a person’s “ordinary residence” for the purposes of assessing which local authority is liable to pay for his/her care under s.21&24 of the National Assistance Act 1948. The Court adopted a purposive approach to the concept of “ordinary residence” in this context in order to avoid the prospect of a local authority avoiding responsibility for a person in need of care after their 18thbirthday by arranging a placement for them in another authority’s area prior to their 18th birthday.
The case arose out of a dispute as to who should pay for the long term care needs of PH, a young man with severe physical and learning difficulties who is without speech and who lacks capacity to decide for himself where to live. Until the age of 4, PH had lived with his parents in Wiltshire. He then moved to live with foster parents in South Gloucestershire, where he lived until the age of 18. During that time he remained in contact with his parents, who moved to Cornwall. After reaching the age of 18, he lived in two care homes in the Somerset area.
Pursuant to s.24 of the 1948 Act, the local authority liable to pay for PH’s care needs as an adult (the cost of which amounted to some £80,000 per year) was the authority in whose area he was “ordinarily resident” on his 18th birthday.
The Secretary of State, who had been asked by the local authorities to exercise his power under secondary legislation to make a determination as to where PH was ordinarily resident for this purpose, determined that he had been ordinarily resident in Cornwall on his 18th birthday because, applying the language of Taylor J. in R v. Waltham Forest LBC ex parte Vale (unreported, 11 February 1985), himself applying the language of Lord Denning MR in In re P (GE) (An Infant)  Ch. 568, his ‘base’ was with his parents and they now lived in Cornwall. However, PH had not lived in Cornwall himself at any time of his life. The Secretary of State’s view was that this did not matter because, in the case of a person lacking in capacity to decide for himself where to live, it was necessary to look to the “seat of the decision-making power”, which in this case he concluded was with PH’s parents in Cornwall.
Cornwall Council challenged the Secretary of State’s determination by way of a claim for judicial review. At first instance, Beatson J. (as he then was) dismissed the claim. On appeal, however, the Court of Appeal (Elias, Lewison and Floyd LJJ) quashed the Secretary of State’s determination, holding that there was no legal basis for concluding that PH had been ordinarily resident in Cornwall on his 18th birthday when he had never lived there. The Court of Appeal further concluded that the only rational conclusion on the material before the Secretary of State was that PH had on the relevant date been ordinarily resident in South Gloucestershire, where he had lived for over a decade and was undoubtedly the place he would have regarded as ‘home’.
The Secretary of State appealed to the Supreme Court. Giving the lead judgment Lord Carnwath JSC (with whom Baroness Hale DPSC and Lords Hughes and Wilson JJSC agreed) held:
The use of the word “base” by Lord Denning MR in In re P should be seen in context. There was nothing to suggest that he was intending to separate the idea of a “base” from the need for physical residence of some kind (para. 44). It was unhelpful to elide the test for ordinary residence set out in R v. Barnet LBC ex parte Shah  A.C. 309 with the idea of a “base” (para. 47).
- The Secretary of State’s reasons for selecting Cornwall as the place of PH’s ordinary residence on his 18th birthday could not be supported. The Secretary of State 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 (para. 49).
- The Secretary of State’s approach of looking to the ordinary residence of the person taking decisions on behalf of a person without capacity might have force from a policy point of view, but was 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 (paras. 50-51).
- Although the Court of Appeal’s choice of South Gloucestershire as the place of PH’s ordinary residence on his 18th birthday fitted the language of the statute, it ran directly counter to its policy. PH’s only connection with South Gloucestershire was a historic placement under the Children Act 1989, which specifically excluded the placement from consideration as ordinary residence for the purposes of that Act (para. 53). The policy discernable in both Acts was that the ordinary residence of a person with provided with accommodation should not be affected for the purposes of an authority’s responsibilities by the location of that person’s placement (paras. 55-59).
- Accordingly, the only lawful conclusion on the facts of the case was that PH was ordinarily resident in Wiltshire on his 18th birthday, since that was where he was ordinarily resident immediately prior to his placement in South Gloucestershire (para. 60).
Lord Wilson JSC agreed that the Secretary of State had erred in law in selecting Cornwall as the place of PH’s ordinary residence, but dissented from the majority conclusion that the only lawful conclusion was that PH was ordinarily resident in Wiltshire. He concluded that the rationale summarized at paragraph 4 above amounted to impermissible judicial legislation.
David Lock QC and Charles Banner appeared for Cornwall Council, whose challenge to the Secretary of State’s decision was upheld before the Court of Appeal and Supreme Court.