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The Secretary of State erred in determining the ordinary residence of a young man with learning disabilities

R (Cornwall Council) v Secretary of State for Health and another case [2015] UKSC 46

Related Member(s):
Tamara Jaber, Helen Mountfield QC, Sarah Hannett
Related Practice Area(s):
Community Care Law, Discrimination and Equality, Local Government Law, Public Law

The Supreme Court allowed an appeal by a majority of 4-1, and determined that the ordinary residence of the young man with learning disabilities (PH) at the relevant time was to be in Wiltshire.

PH was born in Wiltshire but was placed with foster parents in South Gloucestershire under the Children Act 1989. In the meantime, his parents moved to Cornwall. PH never resided with his parents in Cornwall, but he spent holidays there and his parents remained involved with decisions concerning his care. After his eighteenth birthday, he was placed in a care home in Somerset. The cost of PH’s care is currently estimated at £80,000 per year for life. The issue in this case was which local authority was responsible for providing PH’s support, and specifically, where PH was “ordinary resident” immediately before he attained majority pursuant to the National Assistance Act 1948, ss 24(1) and (5). In August 2011, the three local authorities jointly referred the question of PH’s ordinary residence to the appellant Secretary of State for determination, under s 32(3) of the 1948 Act. The Secretary of State determined that PH was ordinarily resident in Cornwall. Cornwall Council appealed. The decision of the Secretary of State was upheld by Beatson J in the Administrative Court, but was quashed by the Court of Appeal who determined for itself that PH was ordinarily resident in South Gloucestershire.

Giving the majority judgment, Lord Carnwath reasoned that the Secretary of State’s reasons for selecting Cornwall, which started not from assessment of the duration and quality of PH’s actual residence but from an attempt to ascertain his “base” by reference to his family relationships, could not be supported. There was no suggestion that PH’s brief periods of staying with his parents at holiday times could amount to ordinary residence. He stated that although attribution of responsibility to South Gloucestershire might fit the language of the statute, it would run directly counter to the statute’s policy. The purpose of the deeming provisions in both the 1989 and the 1948 Acts is that an authority should not be able to export its responsibility for providing accommodation by “exporting” the person who is in need of it.

Lord Carnwath stated that until he turned eighteen, for fiscal and administrative purposes, his ordinary residence continued to be in Wiltshire, regardless of where they determined that he should live, including placing him in foster care in South Gloucestershire.

Sarah Hannett, Tamara Jaber and Helen Mountfield QC were involved in this case.