Case comment: R (Cornwall Council) v Secretary of State for Health  UKSC 46  3 WLR 213
28 Friday Aug 2015
It is not uncommon for a local authority to secure care and accommodation outside its area for a child in need. In this case, the Supreme Court has held that, where the child remains in such accommodation until the age of 18, the responsibility for the provision of his adult care and accommodation will remain with the placing local authority rather than the local authority in whose area he has been living.
The Supreme Court’s approach to determining where a person is ‘ordinarily resident’ for these purposes marks a departure from previous case law.
P was born on 27 December 1986 in Wiltshire. He has complex physical disabilities and severe learning difficulties, such that he does not have the capacity to determine where he wants to live.
At his parents’ request, in 1991 Wiltshire County Council placed P in specialised foster care in South Gloucestershire, pursuant to its duties under the Children Act 1989.
P lived there until 24 January 2005 (just after his 18th birthday), when he moved into a residential home in Somerset.
In the meantime, his parents – who continued to be closely involved in his care – had moved to Cornwall. P visited them there from time to time.
The issue was: which local authority – Wiltshire, South Gloucestershire, or Cornwall (Somerset was never in the frame) – was responsible for the provision of his care and accommodation as an adult?
Under section 20 of the 1989 Act, a local authority has a duty to provide accommodation to any child ‘within their area’ who appears to require it. The child need not be ‘ordinarily resident’ in the area: the responsible local authority is simply the local authority in which the child happens to be.
However, under section 20(2) of the 1989 Act, if the child is ‘ordinarily resident’ in a different local authority’s area, that local authority may have to take over responsibility. Section 105(6) provides that, in determining where a child is ‘ordinarily resident’, any period of time during which he is being provided with accommodation by a local authority is to be disregarded.
It follows that, under the 1989 Act, there was no question of P being the responsibility of any authority other than Wiltshire. He was living in Wiltshire when the need for accommodation arose and there was no question of his becoming ordinarily resident in South Gloucestershire because of the section 105(6) exclusion.
However, subject to Wiltshire’s continuing duties under section 23C of the 1989 Act to provide ‘assistance’ to P up to age of 21, the responsibility for the provision of care and accommodation to him as an adult fell to be determined under a different statute: the 1948 Act (or, now, in England, the Care Act 2014, which is probably not materially different for present purposes).
Section 21 of the 1948 Act imposes the duty to provide accommodation for adults. By section 24, the responsible local authority is the local authority in whose area the person is ‘ordinarily resident’. Section 24(5) of the 1948 Act contains an exclusion which is similar in effect to that set out in section 105(6) of the 1989 Act, although it is expressed differently: the person is deemed to be ordinarily resident in the area in which he was ordinarily resident immediately before any accommodation under section 21 was provided.
The councils of Wiltshire, South Gloucestershire and Cornwall asked the Secretary of State to determine where Philip was ‘ordinarily resident’ for the purposes of the duty to provide accommodation under section 21.
The Secretary of State decided that, when he turned 18, P was ‘ordinarily resident’ in Cornwall. He applied his Guidance on the Identification of the Ordinary Residence of People in Need of Community Care Services, England, which purported to apply the House of Lords judgment in R v Barnet LBC, ex parte Shah  2 AC 309 and Turner J’s judgment in R v Waltham Forest, ex parte Vale The Times, 25 February 1985. The guidance suggested that, while there is a presumption that a person’s ordinary residence does not change when he reaches the age of 18, that may be rebutted in the particular circumstances of the case. The Secretary of State found that P was ordinarily resident in Cornwall because, since he lacked capacity to choose his own residence, it was necessary to look to where his parents’ lived. Because P visited his parents regularly and because they were still involved in his case, the Secretary of State thought that their home in Cornwall could be treated as his ‘base’ such that he was ordinarily resident there.
On 21 December 2012, Beatson J dismissed Cornwall’s claim for judicial review, holding that the Secretary of State had applied the correct legal tests and had reached a decision open to him on the facts.
On 18 February 2014, the Court of Appeal (Elias, Lewison and Floyd LJJ) allowed the appeal. The Court of Appeal held that it was incorrect to focus on where P’s parents were living or to place too much weight on the notion of a ‘base’. At the time he turned 18, P was ‘ordinarily resident’ in South Gloucestershire.
The Secretary of State and Somerset appealed to the Supreme Court.
By a majority of 4:1, the Supreme Court allowed the appeal. The reasoning of the majority (Lord Carnwath, Lady Hale, Lord Hughes and Lord Toulson) can be summarised as follows:
- First, the majority gave short shrift to the argument that Wiltshire’s continuing duty to provide assistance under section 23C of the 1989 Act meant that the duties under section 21 of the 1948 Act did not arise at all. Although the section 21 duties are duties of ‘last resort’ in that section 21 does not authorise any provision which is already authorised by any other enactment, this did not include transitional duties such as those under section 23C: see paragraphs 28-32 of the judgment.
- Secondly, the policy lying behind both the 1989 Act and the 1948 Act was to ensure that there was an effective tool for deciding which local authority was responsible for the provision of care and that the making of a placement elsewhere should not affect the placing authority’s continuing responsibility. This was the purpose of the ‘exclusions’ in section 105(6) of the 1989 Act and section 24(5) of the 1989 Act: see paragraphs 35-36 of the judgment.
- Thirdly, the question under section 24 of the 1948 Act is where the person in question is ‘ordinarily resident’. The question is not where he is ‘based’. Nor, even if the person does not have capacity, is it right to focus on where his parents are ordinarily resident: see paragraphs 44, 47, 50 and 51 of the judgment.
- Fourthly, although South Gloucestershire appeared to be the place in which C was ‘ordinarily resident’ if that phrase was given its ordinary and natural meaning as per Shah, this ran counter to the policy of the statute identified above: paragraphs 52-3 and 55 of the judgment. The 1948 Act had to be read seamlessly with the 1989 Act: section 24 could not be read as permitting a person to be ‘ordinarily resident’ in a particular place solely because of a placement made under the 1989 Act which would not have affected his ‘ordinary residence’ under that Act: paragraphs 52-59 of the judgment.
- Accordingly, while the Court of Appeal was right to hold that the Secretary of State had erred in law and that Cornwall was not responsible for P under the 1948 Act, the Court of Appeal had been wrong to hold that South Gloucestershire was responsible. Wiltshire remained responsible: paragraphs 49 and 60.
Lord Wilson gave a dissenting judgment. He considered that Parliament would have used the term ‘ordinarily resident’ in accordance with its well-established meaning (viz the place ‘adopted voluntarily and for settled purposes as part of the regular order of his life for the time being’, as per Shah). Allowing for the fact that P could not ‘voluntarily’ choose to live anywhere because of his lack of capacity, this test could still lead to only one conclusion: on the facts, when he turned 18, P was ordinarily resident in South Gloucestershire. Parliament could have made provision requiring periods during which a person had been placed under the 1989 Act to be disregarded, but it had not done so. Lord Wilson felt that the majority were engaging in impermissible judicial legislation.
This judgment is in some ways surprising and is likely to be controversial. It is remarkable that a person should be found to be ‘ordinarily resident’ at the age of 18 in a county in which neither he nor his parents have resided since he was aged 4 and to which he had no prevailing connection at all. The result is, as the Court accepted, ‘artificial and arbitrary’: see paragraphs 60 and 36. It is notable that none of the many parties to these proceedings contended that Wiltshire was the responsible local authority until the point was raised by the Supreme Court itself: see paragraphs 3 and 63 of the judgment.
However, the policy reasons relied on by the majority are compelling, as Lord Wilson himself recognised. Their approach avoids the need for complex factual disputes in cases such as this. It promotes consistency and continuity. It also promotes cooperation between local authorities, by avoiding the risk that an authority who accepts the placement of a child in need from elsewhere would have to assume responsibility for his needs when he turned 18.
This judgment will have some wider impact, but the decision does turn on one important fact. The key point is that P’s placement outside of Wiltshire had been continuous up to his 18th birthday. If, for example, P had been in and out of placements and in the intervening periods he had been living with his parents in Cornwall, then at some stage his ordinary residence might well have changed to Cornwall (not because that was his parents’ ordinary residence but because, in the circumstances, it may have become his). The only periods not to be taken into account in assessing ordinary residence are those during which the individual has been placed in accommodation by a local authority.