Who pays for your care?

Supreme Court overturns key Court of Appeal decision on ordinary residence

The Supreme Court has rejected a Court of Appeal ruling on who has financial responsibility for the care of an adult with physical and learning disabilities, instead ruling that the local authority initially responsible for meeting his needs as a child should be responsible for his care after the age of 18.

The ruling was made despite the subject, PH, having been placed in foster care outside the authority’s area from the age of five, having lived out-county all of his adult life and his natural parents having also moved away from the local authority area of his birth.

PH has physical and learning disabilities and there is no dispute that he is entitled to receive care costing around £80,000 per annum. He was born in Wiltshire in 1986, but was placed by Wiltshire County Council with foster parents in the South Gloucestershire Council area from 1991. Since he was 17, PH has lived in two care homes in Somerset. His natural parents moved to Cornwall from Wiltshire after his foster placement was made and PH regularly visited them there for holidays.

The dispute over who should pay for his care was initially referred by the councils concerned – Cornwall, Wiltshire, Somerset and South Gloucestershire – to the Health Secretary to determine “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.”

Wiltshire Council arranged PH’s foster placement under the Children Act 1989. Under Section 105(6)(c) of the Children Act 1989, any period in which the child lives in accommodation provided by or on behalf of the local authority is disregarded in determining a child’s ordinary residence for the purposes of the 1989 Act.

At the time PH turned 18, the National Assistance Act 1948 section 21 obliged local authorities to arrange accommodation for people over eighteen with disabilities who need care and attention not otherwise available to them (the application of the 1948 Act has since been restricted to Wales).

According to section 24(5) of the Act, somebody provided with accommodation under the Act is considered to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before that accommodation was provided. Section 105(6)(c) and section 24(5) have been referred to as “deeming” or “disregard” provisions.

The minister concluded that Cornwall was responsible for the cost of PH’s care, drawing on two principal authorities: R v Barnet LBC, ex p Shah [1983] AC 309, and R v Waltham Forest, Ex p Vale (unreported, 11 February 1985). In Shah, the House of Lords held that “ordinary residence” connotes an abode voluntarily adopted for settled purposes. In Vale, the High Court held that an adult woman whose disabilities meant she was incapable of choosing where to live had her ordinary residence with her parents, because that was her “base”.

This prompted the Cornwall Council to challenge that determination by way of judicial review in the High Court before Mr Justice Beatson (as he then was) but were unsuccessful.

Cornwall then applied to the Court of Appeal, which allowed the appeal and declared South Gloucestershire to be the ordinary place of residence at the relevant time. The Court of Appeal also ruled that the deeming provisions did not apply to PH since each applied only for the purposes of their own Act.

The Health Secretary appealed this decision to the Supreme Court. 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).

In R (on the application of Cornwall Council) (Respondent) v Secretary of State for Health (Appellant) and R (on the application of Cornwall Council) (Respondent) v Somerset County Council (Appellant) [2015] UKSC 46, the Supreme Court allowed the appeals by a majority of 4-1, determining PH’s ordinary residence at the relevant time to be Wiltshire. Lord Carnwath gave the judgment with which Lady Hale, Lord Hughes and Lord Toulson agreed. Lord Wilson gave a dissenting judgment.

In determining that Wiltshire Council was responsible for the cost of PH’s care, the Supreme Court said 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, cannot be supported. PH’s brief periods of staying with his parents at holiday times could not amount to ordinary residence, it ruled.

The judgment said that although the attribution of responsibility to South Gloucestershire may fit the language of the statute, it runs directly counter to the statute’s policy. The only connection with that county was PH’s historic placement under a statute, the Children Act 1989, which specifically excluded the placement from consideration as ordinary residence for the purposes of the 1989 Act.

It continued: “The policy in both the 1989 and 1948 Acts is that ordinary residence of a person provided with accommodation should not be affected, for the purposes of an authority’s responsibilities, by the location of that person’s placement. The purpose of the deeming provisions in both 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. It would be undesirable if, despite the similarity and purpose of these provisions, there is a hiatus in the legislation. It could also have adverse consequences on local authorities’ willingness to receive children who need specialist care from another local authority,”

Lord Carnwath noted that in construing section 24 of the 1948 Act, the statutory context is critical. The relevant provisions in each Act have the same function, namely allocating fiscal and administrative responsibility between local authorities. PH was at the relevant time living somewhere he had been placed by a local authority under the 1989 Act.

“It would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are found in the 1989 Act. One of those characteristics is that the foster placement did not affect his ordinary residence under the 1989 Act’s statutory scheme. It follows that PH’s placement in South Gloucestershire by Wiltshire is not to be regarded as changing his ordinary residence. 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.

Therefore the appeal is allowed and in the declaration of the Court of Appeal references to South Gloucestershire are substituted for references to Wiltshire.”

In the dissenting judgement. Lord Wilson argued that at the relevant date PH and his family had all moved away from Wiltshire and that South Gloucestershire “is the result that the law clearly compels” on the established meaning of “ordinary residence”, even if public policy militates against it.

He said: “Though he did not adopt it voluntarily, PH was happy and settled there. Parliament has not chosen to widen the provisions in the 1948 Act so as to disregard an adult’s previous placement as a minor under the 1989 Act.

“The majority’s analysis that the “legal characteristics” of a minor’s residence under the 1989 Act make it irrelevant to determining ordinary residence under section 24 of the 1948 Act makes the statutory disregards in section 105(6) of the 1989 Act and section 24(5) of the 1948 Act redundant.”

Copies of the judgements can be found at the following links:

In R (on the application of Cornwall Council) (Respondent) v Secretary of State for Health (Appellant) [2015] UKSC 46


R (on the application of Cornwall Council) (Respondent) v Somerset County Council (Appellant) [2015] UKSC 46

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