R (Cornwall Council) v SoS for Health & Ors  EWCA Civ 12 (Court of Appeal (Elias, Lewison and Floyd LJJ))
This very important decision of the Court of Appeal overturns the decision of Beatson J that we reported upon in December 2012 and will require the Department of Health to revisit its guidance upon the determination of ordinary residence insofar as it relates to the determination of the ordinary residence of adults unable to decide where they wish to live. It is also of relevance to the questions of the determination of habitual residence for purposes of the Court of Protection’s cross-border jurisdiction under Schedule 3 to the MCA 2005.
The case arose out of a dispute between local authorities as to the ordinary residence of ‘Philip,’ a man with severe disabilities lacking the capacity to decide where he wished to live and in need of a substantial care package (amounting to some £80,000 per year). The Secretary of State, asked to decide as to Philip’s ordinary residence, determined that his ordinary residence when he turned 18 was Cornwall where his family home was. It was common ground that Wiltshire was Philip’s place of ordinary residence until the age of 18; and in accordance with the guidance, there was a presumption that his place of ordinary residence would not change, but that this may be rebutted on the facts. The Secretary of State found that it had been rebutted in the particular circumstances of the case for the following reasons: (1) Philip was not ordinarily resident in Wiltshire because he no longer had any links at all with that area. The child did not live there; the parents and siblings had moved away from the area, as had the maternal grandparents; and the only link was the fact that Wiltshire had been the authority with responsibility for him under the Children Act 1989 Act: (2) the facts were very similar to R v Waltham Forest LBC, ex p. Vale, 25 February 1985, and whilst it was recognised in the guidance that the principles enunciated in the first test (which, in essence, equated an incapacitated adult with a dependent child) in that case should be adopted with caution, the Secretary of State was satisfied that it could appropriately be applied here; (3) applying ‘Vale 1,’ Cornwall should be treated as the place of ordinary residence, notwithstanding the relatively infrequency of Philip’s visits, primarily upon the basis of the continued close contact with his family there.
Cornwall sought to challenge that decision – unsuccessfully – before Beatson J and appealed to the Court of Appeal.
The Court of Appeal rejected the first ground of Cornwall’s appeal – that the Secretary of State did not jurisdiction to determine the issue of ordinary residence – for reasons which need not detain us here.
The Court of Appeal, however, upheld the second ground of Cornwall’s appeal, namely that the Secretary of State had misdirected himself as to the meaning of the phrase ‘ordinary residence’ in the context of adults lacking the capacity to decide where to live. In so doing, it had cause to consider whether the case of Shah R v Barnet LBC ex parte Shah  AC 309 in fact provided the starting point that it has traditionally been assumed to. The reasoning of Elias LJ giving the judgment of the Court on the question of ordinary residence in the case of incapacitated adults is sufficiently important that it merits replication in full:
“74. Since the place of ordinary residence is a question of fact, it is perhaps misleading to describe Shah as laying down a test as such at all. Rather, Lord Scarman has identified the paradigm case where an adult will typically be found ordinarily resident – where he has a settled abode as part of the regular order of life, voluntarily chosen. As such it helps to inform cases which depart in various ways from that paradigm. But whatever the merits of that approach for adults, as the Supreme Court held in Re A, Shah should be abandoned as the appropriate test to apply when considering the ordinary residence of young children, because they cannot sensibly be said voluntarily to choose where they live nor to have a subjective settled purpose with respect to it. Precisely the same difficulties arise with respect to those who are severely mentally disabled as Vale itself recognised. Shah provides no real assistance in those cases either.
75. However, in my judgment the first test in Vale establishes something akin to a rule of law. The actual test adopted by Taylor J (set out in para. 25 above) was that where the adult so lacks capacity that he is totally dependent on his parents, then at least in cases where the parents are living together, their place of ordinary residence must be taken to be that of their child. On the facts of that case, the decision is no doubt correct; and it may be that the judge meant the test to be read in that context. Indeed, the test will almost inevitably provide the right answer when the parents are actually caring for their child, because in those circumstances the child will in fact reside with the parents. That was indeed the situation in Vale, albeit for a short period only. Taylor J himself recognised that the position is more complicated when the parents delegate the care of the incapacitated child to others. He said that their child may then acquire what he described as a second ordinary residence. But for the purposes of attributing liability, there can only be one place of ordinary residence since only one authority is ultimately responsible for providing the relevant care and attention; and the Secretary of State must identify which area most satisfies the ordinary residence test.
76. In my judgment, the Secretary of State did apply the Vale test without proper consideration of Philip’s actual place of residence and as if it were a rule of law. I accept that he did carefully consider the facts but that was in the context of determining whether the conditions for the application of the test were met. Once he was satisfied that the facts were sufficiently similar to the circumstances in Vale, he necessarily concluded that Philip’s ordinary residence was determined by the ordinary residence of the parents, which at the material time was Cornwall. He described this as Philip’s base. Even if that is a helpful concept, I do not accept that Cornwall could properly be so described. It was not a place where Philip had any settled residence at all; it was simply a place which he occasionally visited for holidays. His parents visited him in South Gloucestershire more frequently than he visited them in Cornwall. Philip’s parents’ house was not, to use Lord Denning’s phrase, “a place where he goes out and to which he returns.” Indeed, in so far as it is helpful to adopt the concept of his base at all, this was surely South Gloucestershire. It was there where he lived day by day; it was from there that he left on his very occasional visits to Cornwall and to which he returned; and it was there that he received the visits from his parents.
77. In my judgment, the first test in Vale ought not to be followed. The words ‘ordinary residence’ should, unless the context indicates otherwise, be given their ordinary and natural meaning. The effect of applying the Vale test without any real regard to the actual place of residence is that Philip is found to be ordinarily resident in a house which has never been his residence and indeed is not a suitable place for him to reside (hence the reason why he was accommodated under section 20). The occasional visit to his parents for holidays does not begin to justify a conclusion that he resides with them, let alone that it is his place of ordinary residence.
78. The observations of Lord Slynn in Mohammed and the judgment of the Supreme Court in Re A  UKSC 60] recognise the significance of the place of actual residence. I appreciate that these cases were concerned with different statutory contexts but they cannot simply be ignored on that ground. The courts in those cases were equally concerned to identify a place of residence with which the individual had a close connection. In my view, where the vulnerable adult like Philip has as a matter of fact been living in one place and only one place for many years, that will almost inevitably compel the conclusion that it is his ordinary place of residence. It is not, in my view, legitimate to avoid that common sense conclusion by the application of an artificial rule which effectively gives no weight to the fact of residence at all.
79. I do not say that the link with the parents is irrelevant; in some contexts it might carry real weight. Moreover, contrary to the submission of Mr Lock, I accept that the Secretary of State was entitled on the evidence to conclude that the parents in practice made the relevant decisions on Philip’s behalf. But even having regard to that factor, it could not in my view justify treating Cornwall as Philip’s place of ordinary residence.
80. Although we did not hear argument specifically on the point, there is in my view much to be said for the court adopting in the context of severely incapacitated adults a test of ordinary residence similar to the test of habitual residence adopted for dependent children in Re A, namely where he is integrated into a social and family environment. I recognise that both the context and indeed the precise test in Re A was different – habitual rather than ordinary residence – but in my judgment those considerations should not lead to a materially different approach There is this difference, however: in the jurisdictional context a court might properly conclude that a person – adult or child – is not habitually resident anywhere whereas for the purposes of fixing responsibility for providing care, the child must be ordinarily resident somewhere.
81. In this context, by analogy with the test for children adopted in Re A, the ordinary residence would be the place which can properly be described as the centre or focus of the child’s social and family environment. That may not always be easy to determine where he is subjected to two sets of relationships, with both his parents and the carers who foster him, and spends time with both. No doubt the place of ordinary residence may sometimes be with the parents even though he may spend more time with carers. The greater emotional pull of the parents may justify the conclusion that the parents’ residence can properly be considered the place where his emotional and social life is most focused (he might perceive it as his real base) even though he spends more time with the carers. But it seems to me that he would at least have to have a pattern of regular living with the parents before it would be possible to describe this as his own place of ordinary residence. The fact that Philip’s placement has been deliberately chosen so that he is in close proximity to the family home, a factor relied upon by the Secretary of State, does not make it in any sense his residence or justify treating the parents’ home as his base. It facilitates visits both ways. Applying the Re A test, in my view, the place where he has the closest social and family environment also points ineluctably to South Gloucestershire. That is where he is integrated socially and emotionally with his foster parents; and that is where he frequently sees his own parents” (emphasis added).
Two secondary grounds of arguments were advanced on behalf of Cornwall. The first was that the Secretary of State had erred in taking as his starting point a presumption in favour of Wiltshire being the place of ordinary residence because Wiltshire had had the responsibility for Philip as a child. Elias LJ noted that the Secretary of State was simply acting in accordance with the guidance, but he agreed that it was not helpful to adopt this as a presumption, at least in cases where the child had been placed out of the borough.
The second was that “insufficient focus had been directed to considering the wishes of Philip.” Elias LJ noted that “[t]his point had not been advanced below and it would not be right to consider it now, quite apart from the fact that given Philip’s very severe handicap, he is not capable of communicating his wishes. Nor do I see how his wishes as such can be relevant to a consideration of his ordinary residence. No doubt in an appropriate case and for a less severely handicapped individual it will be necessary to have regard to the state of mind (rather than the wishes) of the child in relation to his perception of the nature and quality of his residence. That could be relevant to a consideration of ordinary residence in much the same way as the Supreme Court has recently held the state of mind of an adolescent child is relevant in determining his habitual residence: Re LC (Children)  UKSC 1. But that is not this case” (paragraph 84).
The Court of Appeal therefore found that the Secretary of State had misdirected himself in law. The decision was not, however, remitted for a fresh determination because there was only one conclusion properly open to the Secretary of State – namely that Philip’s place of ordinary residence was South Gloucestershire: “[i]t could not be Wiltshire, because he ceased to have any connection with it at all. At that stage he had never lived in Somerset and had no connection with it. And for reasons I have given, the mere fact that his parents’ place of ordinary residence was in Cornwall could not justify finding that to be Philip’s place of ordinary residence” (paragraph 85).
In the comment in the 39 Essex Street Mental Capacity Law Newsletter upon the first instance decision of Beatson J, we noted that, whilst “’test 1’” in Vale undoubtedly serves a pragmatic purpose, viewed in the abstract it does not sit very easily with the principle of autonomy enshrined in the MCA. In its direct equation of the position of an incapacitated adult with that of a small child, it also stands at odds with the clear thrust of COP case-law, which is to the effect that the two can and should be treated as conceptually distinct (note, for instance, the clear rejection by the Court of Appeal in K v LBX & Ors  EWCA Civ 79 that there is any presumption when determining the best interests of an incapacitated adult that they should reside at home with their family). “Test 2,” by contrast, does not give rise to the same problems.” We also drew attention to the potential parallels with the fact that an incapacitated adult can change their habitual residence for purposes of Schedule 3 (citing in support Re MN)
I therefore welcome the decision of the Court of Appeal, which lays down once and for all that the ‘Vale 1’ test is incorrect as a matter of law and should not be followed for purposes of determining ordinary residence. A close focus will therefore be required upon the circumstances of the incapacitated adult and – where appropriate – their state of mind in determining where they are ordinarily resident.
This decision will be of relevance not merely for purposes of community care provision but also:
- For purposes of deciding which local authority is the supervisory body for purposes of the DOLS regime: paragraph 182 of Schedule A1 to the MCA 2005.
- Beyond England and Wales, given that the Scottish Government Guidance on ordinary residence expressly bases itself upon the English case law, and, in particular, Vale.
The decision also chimes neatly with the decision of the President in Re PO in relation to habitual residence under Schedule 3 to the MCA 2005, standing as clear (albeit obiter) endorsement of the inapplicability of Shah to incapacitated adults for these purposes, as well as of the potential relevance of the adult’s state of mind.