The case of PH considered by the Supreme Court and handed down on 8th July has implications for Councils and for the Government who will be considering their guidance in relation to “ordinary residence”

The judgement concerns where a young man PH who has severe learning disabilities is “ordinarily resident” and therefore who bears responsibility for his care costs.

Background

PH was born in 1986 in Wiltshire. In 1991 he was accommodated under section 20 of the Children Act 1989 by Wiltshire Council and placed with foster parents in South Gloucestershire. His parents moved to Cornwall in 1991 and PH remained with the foster family (he did have regular contact with his parents and occasional visits to the family home.) When he turned 18 PH was unable to stay with his foster parents so was placed by Wiltshire in a care home in Somerset which did not work well and was followed by another in Somerset where he remains. This placement was made under the National Assistance Act. Wiltshire assessed his capacity in 2008, concluding that he lacked capacity in relation to his accommodation and concluded this would have been the same in 2004.  

The question of PH’s ordinary residence was subsequently disputed between Wiltshire, Cornwall and South Gloucestershire.

  • Wiltshire as the Council having originally accommodated PH
  • South Gloucester as the Council where he had lived with the foster family for 14 years
  • Cornwall as the Council where the parents had chosen to live and where he occasionally visited

Test of Ordinary residence where a person lacks mental capacity to make the decision themselves

The starting point is usually that when someone transitions from the jurisdiction of the Children Act to the National Assistance Act, the presumption is that they remain ordinarily resident in the local authority that had responsibility for them under the Children Act,

The “Shah test” (from Shah v London Borough of Barnet [1983]) – describes ordinary residence as the place that a person has adopted voluntarily and for settled purposes. This does not usually apply when a placement is not adopted voluntarily.

The “Vale tests” (from R v Waltham Forest London Borough Council, ex Parte Vale [1985]), is most often used in deciding ordinary residence where a person lacks capacity to decide

 

Decisions in the PH case

Initially the Secretary of State determined that the day before PH’s 18th birthday – he was ordinarily resident in Cornwall. The usual position would have been that Wiltshire retained responsibility, however the Secretary of State decided that on the facts of the case PH had no links with Wiltshire and concluded that his “base” was the parents’ home in Cornwall

Cornwall then launched a judicial review against the decision, but the High Court upheld the secretary of state’s determination.

 

The Court of Appeal subsequently decided that by reference to the “Shah” and “Vale” tests that PH’s settled residence over a number of years was in South Gloucester and that was where he was ordinarily resident that South Gloucestershire was responsible for PH’s care.

The Supreme Court decided on 8th July 2015 by a majority decision of 4 to 1 that Wiltshire retained responsibility for PH’s care. This decision was made by reference to the National Assistance Act.  PH would retain the ordinary residence that he had prior to moving into the Somerset care home although PH had lived happily with his foster parents in South Gloucestershire for 14 years, he had been placed there by Wiltshire, which had been responsible for his care up to the age of 18 under the Children Act.

Implications

Councils need to read the Care Act Guidance and the application of the “Shah and Vale tests” on ordinary residence in the light of this judgement.

 

Following this judgement it is clear that once a Council has responsibility for accommodating a child this responsibility is likely to continue into adulthood should they remain mentally incapable of making their own accommodation decisions no matter where they are geographically accommodated.

 

However as always the decision in this case is fact specific and other situations will vary.

 

As the Supreme Court reached their decision based on the National Assistance Act 1948 although this has been updated by the Care Act 2014, the Care Act Guidance applies the same tests of Ordinary Residence as the National Assistance Act, the Department of Health is now examining the ruling to decide how it should respond.

Further information and the full judgement can be found here

ihttps://www.supremecourt.uk/cases/docs/uksc-2014-0092-press-summary.pdf

 

https://www.supremecourt.uk/cases/docs/uksc-2014-0092-judgment.pdf