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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

31 JAN 2013

R (on the application of Cornwall Council) v Wiltshire Council and Others [2012] EWHC 3739 (Admin); (2013) PLLR 011

Community Care - Ordinary Residence - Accommodation - Mental Health Act

The Defendant had properly applied the law relating to the determination of ordinary residence in finding a young man to be ordinarily resident in Cornwall, despite him never having lived in that county.

21 December 2012

Administrative Court

Beatson J

(1)        These proceedings concerned PH, a young man with significant learning and physical disabilities. Neither he nor his parents were party to these proceedings. From January 2005, PH had lived in a care home in Somerset, funded by Wiltshire Council. For over 21 years, despite PH's parents residing in Cornwall, Wiltshire Council had provided his accommodation.

(2)        The case concerned a disagreement between local authorities as to the determination by the Secretary of State of the ‘ordinary residence' of PH.

(3)        The Secretary of State had determined that Cornwall Council was the appropriate place of ordinary residence. Cornwall Council challenged this decision on the basis that PH had never lived in Cornwall, owned no property in Cornwall and had only visited his natural parents there two or three times a year. Cornwall Council's case was that the Defendant made an inappropriate and unlawful link between PH and Cornwall. Cornwall Council also challenged the method taken in the case of R v Waltham Forest LBC, ex p. Vale, 25 February 1985 (which had been considered by the decision-maker), stating that it had been superseded by the approach to mental incapacity applied in the Mental Health Act 2005. 

(4)        HELD: The Court considered that the fundamental questions were if the Secretary of State had:

(a)        applied the correct legal test for ordinary residence in finding PH to ordinarily be resident in Cornwall;

(b)        applied the relevant tests in a Wednesbury unreasonable way; and

(c)        erred in determining the date for which the test should be applied to be 27 December 2004.

(5)        The Court held that the determination of ordinary residence was an issue of fact and degree. There were said to be two underlying principles in determining ordinary residence. The first was that local authorities should have no incentive to look to remove the burden of caring for a person by placing them in another local authority's area. The second, as per the Departmental Guidance and Directions issued in 2010, was that there should be considerable disincentives to withholding care pending resolution of disputes between local authorities.

(6)        The crucial question was said to be whether, under section 21 of the National Assistance Act 1948 Act (‘the 1948 Act'), the duty to pay for care had been engaged on PH's eighteenth birthday.

(7)        The Court found that the Defendant had not erred in finding that PH's need for accommodation arose on his eighteenth birthday. The Court rejected Cornwall's contention that there was no need for accommodation to be provided under the 1948 Act because Wiltshire had provided PH with accommodation on his eighteenth birthday, as this was based on the assumption that accommodation was needed, rather than addressing the reason why it was needed.

(8)        The Court held that there was nothing in the Vale case that conflicted with later cases and the Mental Health Act 2005.

(9)        The Court considered that it was important not to disregard that the wording of section 21 of the 1948 Act was ‘ordinary residence' not merely ‘residence'. It was accepted that PH's parents (who lived in Cornwall) took an active role in PH's life, and this was a relevant factor. The Court found that the Defendant made his determination of ordinary residence in a fact-sensitive way, which had been in accordance with the Departmental Guidance and had had regard to the Mental Capacity Act 2005.

(10)     Although the determination process appeared artificial, it was held that the Defendant had given reasons for concluding that PH could not be ordinarily resident in Wiltshire at the relevant time and these reasons were consistent with the relevant law. As to Somerset Council, the Court confirmed that PH had never lived in that county. Further, it was accepted that there could be no imputation of an intention resulting in a finding that PH was ordinarily resident in South Gloucestershire.

(11)     The Court concluded that the Defendant had determined PH to be ordinary resident in Cornwall due to this being his parent's home and his ‘base'. This conclusion was properly available to the Defendant and as such, the application was dismissed.

Application dismissed.

Key Paragraphs

[54] - Fact and degree.

[56] - Underlying principles.

[62] - Need arose on eighteenth birthday.

[73] - Vale.

[80] - Parents relevant.

[85] - Wednesbury unreasonable.

[86] - Accordance guidance.

[89] - Artificial determination process. 46 - Relevant time.

[91] - Not resident South Gloucestershire or Somerset.

[92] - Conclusion. 

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