‘Ordinary residence’ revisited

The Community Care team at 39 Essex Street consider the latest 'ordinary residence' test to reach the Court of Appeal.

In R (Cornwall Council) v Secretary of State for Health [2014] EWCA Civ 12 the Court of Appeal revisited the vexed issue of ordinary residence (OR) in community care cases. OR issues are at the heart of many, if not most, inter-authority disputes, often giving rise to questions as to a service user’s residence, and having significant financial implications for the authority ultimately found to be responsible.

Determining OR is particularly difficult where, as in the Cornwall case, the service-user in question is someone with multiple complex learning difficulties, who lacks capacity and who has links to various addresses in different parts of the country.

Background to the Cornwall decision

P was a severely disabled young man with a number of conditions, including cerebral palsy, epilepsy, autism, right-sided hemiplegia and significant visual impairment. He lacked capacity to decide where to live. P’s family originally lived in Wiltshire, and P, who required a great deal of care, had been placed by Wiltshire Council with foster parents in South Gloucestershire pursuant to section 20 of the Children Act 1989.

P remained in his section 20 placement for 13 years, during which time P’s parents and siblings moved to Cornwall. The family kept in regular contact with P, who usually visited the family home in Cornwall over Christmas and summer.

When P turned 18 the question arose as to which authority should accommodate him pursuant to section 21 of the National Assistance Act 1948. No agreement was reached, and P was placed in two care homes in Somerset, both of them funded by Wiltshire on a provisional basis. The dispute was referred to the Secretary of State.

The Secretary of State decided the matter by applying the first test set out in R v Waltham Forest, ex parte Vale (11 February 1985), namely that where the adult so lacks capacity that he is totally dependent on his parents, then (at least in cases where the parents are living together) the child’s place of OR must be taken to be that of the parents. The Secretary of State determined that in this case P’s OR was with his parents in Cornwall. Cornwall Council applied for judicial review of the Secretary of State’s decision. The claim failed at first instance before Beatson J ([2012] EWHC 3739 (Admin)) and Cornwall appealed.

The Court of Appeal’s judgment

Allowing the appeal, the Court held that whilst the first Vale test will almost inevitably provide the right answer when the parents are actually caring for their child (because the child will in fact reside with the parents), the Secretary of State had erred in applying the Vale test without proper consideration of P’s actual place of residence and as if it were a rule of law.

Instead, the words “ordinary residence” should, in accordance with R v Barnet LBC ex parte Shah [1983] AC 309, be given their ordinary and natural meaning unless the context indicated otherwise. P’s occasional visits to his parents’ home did not begin to support the view that he resided with them, let alone that Cornwall was his place of OR. The only conclusion properly open to the Secretary of State was that at the material time P’s OR was South Gloucestershire, where his foster parents lived.

Analysis of the Court’s judgment

As the Court of Appeal noted at the outset, in most cases the application of the OR test is straightforward and provides a clear answer. When it does not yield a clear answer, however, decision-makers need to know how to apply the test correctly. The Court’s reformulation provides some welcome clarification in this respect. The first Vale test has now effectively gone out the window, and the test has reverted to the more common-sense approach set out in Shah.

This makes a great deal of practical sense given that issues of OR are inherently fact-sensitive; and to give OR an ordinary and natural meaning has the virtue of simplicity. Adding too much gloss to the test, or applying it with too much rigidity, runs the risk of leading to odd results on the facts. In Cornwall, it would have been odd to find that P was ordinarily resident in a place in which he had never lived, and which he only occasionally visited for holidays.

That said, the Court did not downplay the importance of the link with the parental home in cases such as P’s. This was a link which the Court held “… in some contexts might carry real weight”. That must be right.

Interestingly, obiter comments of Elias LJ at paragraphs 80-81 open up the possibility of different test for severely incapacitated adults. The particular test the Court had in mind here was the test of habitual residence in respect of dependent children (see Re A [2013] UKSC 60), namely that OR would be the place which can properly be described as “the centre or focus of the child's social and family environment”.

Whilst this would usually lead to the same result as the Shah approach, the fact that the Court felt it necessary to moot a different discrete test for incapacitated adults suggests that more movement is likely in this area in the future.

This article was written by the 39 Essex Street Community Care Team of Jonathan Auburn, Thomas Amraoui and Benjamin Tankel.