Supreme Court to rule next week on approach to ‘ordinary residence’

The Supreme Court will next week (8 July) hand down an eagerly-awaited judgment on the approach for determining a person’s ‘ordinary residence’, where they lack capacity to decide where to live.

In R (on the application of Cornwall Council) v Secretary of State for Health the Health Secretary was statutorily empowered to resolve a dispute between local authorities over which was responsible to provide for PH, a severely disabled person lacking capacity.

The issue for the Secretary of State to decide was where PH was ordinarily resident when he turned 18.

The minister concluded that it was in Cornwall which, if he was correct, would therefore have to cover the cost – currently estimated at some £80,000 a year – for providing the necessary care for PH throughout his life.

Cornwall challenged that determination by way of judicial review in the High Court before Mr Justice Beatson, as he then was, but were unsuccessful.

The Court of Appeal allowed the appeal and declared South Gloucestershire to be the ordinary place of residence at the relevant time.

The central issue in R (on the application of Cornwall Council) v Secretary of State for Health is “the proper approach to the determination of a person's 'ordinary residence' within the meaning, and for the purposes, of Part III of the National Assistance Act 1948, where that person lacks capacity to decide where to live.”

The parties to the proceedings are the Health Secretary (the appellant), Cornwall Council (the respondent), Wiltshire Council, South Gloucestershire Council and Somerset County Council (the interveners).

A five-justice panel – comprising Lady Hale, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Toulson – heard the case on 18-19 March 2015.

See also: ‘Ordinary residence’ revisited by the community care team at 39 Essex Chambers, setting out the background to the case and analysing the Court of Appeal ruling.