Case Preview: R (Cornwall Council) v Secretary of State for Health; R (Cornwall Council) v Somerset County Council
07 Tuesday Apr 2015
Local authorities have onerous and costly responsibilities for the care of children and adults in need. This sometimes leads to disputes between them as to which has the responsibility for making the provision needed by particular individuals.
One such duty is the provision of accommodation to adults in need of care and attention not otherwise available to them, which arises under section 21 of the National Assistance Act 1948 (‘section 21’). The responsible local authority is the authority in which the person is ‘ordinarily resident’.
If the adult in question has the capacity to determine where he resides, then the term ‘ordinarily resident’ carries its ordinary and natural meaning. In general, this means that a person will be ordinarily resident in the place which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being: R v Barnet London Borough Council, ex parte Shah  2 AC 309.
However, where the person in question does not have capacity to determine where they live, the issue becomes more difficult. In R v Waltham London Borough Council, ex parte Vale, The Times, 28 February 1985, Taylor J held that the ordinary residence of such a person was the ordinary residence of their parents or guardians. The correctness of that approach is the primary issue in the Cornwall case.
Philip was born on 27 December 1986 in Wiltshire. He has complex physical disabilities and severe learning difficulties. At his parents’ request, in 1991 Wiltshire County Council placed Philip in specialised foster care in South Gloucestershire, pursuant to its duties under the Children Act 1989. Philip lived there until 24 January 2005, just after his 18th birthday, when he moved into a residential home. In the meantime, his parents – who continued to be closely involved in his care – had moved to Cornwall. Philip visited them there from time to time.
When he turned 18, 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 concluded that, as Philip lacked capacity to choose where he resided, he was ordinarily resident where his parents were ordinarily resident, namely Cornwall.
Cornwall County Council challenged that decision by way of judicial review proceedings. Beatson J dismissed the claim.
Cornwall County Council appealed to the Court of Appeal.
The Court of Appeal judgment
The Court of Appeal allowed the appeal. Elias LJ gave the lead judgment, with which Lewison and Floyd LJJ agreed.
There were two grounds of appeal.
First, Cornwall argued that, in fact, section 21 was not in play at all. This was because: (i) section 21 is a ‘backstop provision designed to operate only when other avenues for providing accommodation have failed’ (paragraph 5 of the judgment); and (ii) under section 23C of the Children Act 1989, Wiltshire County Council retained a duty to give an adult to whom it was providing relevant care as a child such ‘assistance’ as ‘his welfare requires’ (paragraph 19).
The Court of Appeal dismissed this ground of appeal. Elias LJ held that the section 21 power was wider than the section 23C power. A local authority could not have given Philip the same package of care under section 23C as it could under section 21. The purpose of section 23C is to provide assistance not to impose a responsibility for the full provision of actual care (paragraphs 52-60).
Secondly, Cornwall argued that it was wrong to treat Philip’s parents’ home as his ‘ordinary residence’ and to ignore where he himself was actually physically residing. The Court of Appeal agreed. While the test applied in Vale will usually provide the correct answer where a child or incapacitated adult is living with his parents, the correct approach is to give the phrase ‘ordinary resident’ its ordinary and natural meaning.
In then applying that ordinary and natural meaning, the place of actual residence must be given its proper significance. As with children (see A v A  AC 1), in cases concerning incapacitated adults, it may be appropriate to ask: where is the place where he is integrated into a social and family environment. Depending on how incapacitated the person is, it may be appropriate to have regard to his own state of mind and understanding.
In Philip’s case, there could be no proper answer to the question other than that he was ordinarily resident in South Gloucestershire at the time he turned 18. That was where he had lived on a settled basis and where he was integrated into a family and social environment. The mere fact that his parents lived in Cornwall and that he visited them there occasionally could not make Cornwall his place of ordinary residence.
The decision of the Secretary of State was accordingly quashed and the Court of Appeal declared that Philip’s was ordinarily resident in South Gloucestershire.
The Supreme Court appeal
The Secretary of State appealed to the Supreme Court. The appeal was heard by Lady Hale, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Toulson on 18 and 19 March 2015. A case comment will be published after the judgment is handed down.