January 2017 – New Guidance on Ordinary Residence
The government has issued new Care Act guidance in response to the Supreme Courts July 2015 judgment in Cornwall Council v Secretary of State for Health and Others (Cornwall).
In the judgment, the Supreme Court considered which of three local authorities was responsible for the care of young man with physical and learning disabilities whose care was estimated to cost £80,000 per year.
This statutory guidance sets out the changes to the approach to determining ordinary residence (OR) disputes between local authorities in relation to:
Adults who lack capacity to decide where to live and
Looked after children transitioning to certain adult social care and other accommodation
This case concerned the OR determination made by the Secretary of State in March 2012 that on 26 December 2004 (the day before PH 18th birthday), PH was ordinarily resident in Cornwall where his parents lived. In reaching this determination the Secretary of State applied his understanding of the law as decided in the case of R v Waltham Forest ex p. Vale in respect of adults who lack capacity to decide where to live.
Cornwall council sought a judicial review of the determination. The determination was upheld by the High Court but reversed by the Court of Appeal who held that PH was ordinarily resident in South Gloucestershire where he had been placed as a child by Wiltshire and had lived for 14 years with his foster carers.
The decision was appealed to the Supreme Court who held that PH was ordinarily resident in Wiltshire, the authority which had placed him in South Gloucestershire.
Broadly, the Court made this decision because of the broad similarity between the deeming provisions in childrens and adult legislation, the underlying purpose of which was that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it. Thus the Court said that:
A person who is placed by local authority A in accommodation in the area of local authority B under the Children Act 1989 (the 1989 Act) and remains there until he or she becomes 18 is to be regarded on reaching 18 as remaining ordinarily resident in local authority A for the purpose of the deeming provisions in the National Assistance Act 1948.
The departments reliance on the case of Vale to substitute an alternative test of ordinary residence depended on a misunderstanding of that judgment.
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