A case comment on R v Secratary of State for Health  UKSC 46, given by the UK Supreme Court 8 July 2015.
PH was born in Wiltshire  and grew up with his parents in Wiltshire until he was 4 and then moved into Foster Care (in South Gloucestershire) arranged by Wiltshire Council in line with the provision of the Children Act, 1989. He lived with his Foster Parents in South Gloucestershire until his 18th birthday, then lived in two care homes in Somerset thereafter. In the meantime, PH’s parents relocated to Cornwall in 1991, and have lived there since.
The question for court determination was which place should be PH’s ordinary place of residence after attaining adulthood, for the purpose of determining the Council vested with fiscal and administrative responsibilities.
The Summary of Case up to Court of Appeal
The Secretary of State, acting under section 32, of the National Assistance Act, 1948, (and using two principal authorities – R v Barnet LBC, Ex p Shah and R v Waltham Forest, Ex p Vale) decided that Cornwall were responsible. In judicial proceedings brought by Cornwall, the Secretary of State’s decision was upheld in the High Court (as per Beatson J), but set aside by the Court of Appeal, which held that South Gloucestershire were responsible. Somerset and Secretary of State brought an appeal with the permission of the court, supported by South Gloucestershire and Wiltshire but opposed by Cornwall. Lord Carnwath (in agreement with Lady Hale, Lord Hughes and Lord Toulson) allowed the appeal, with a dissent from Lord Wilson.
Review of the Legal Principles
By virtue of the Children Act 1989, section 20(1), ‘any’ local authority has a duty to provide accommodation and other expenses for a child needing care who happens to be in its area. Sections 20 (2) and 29 provide to the effect that where any local authority provides accommodation for a child ‘ordinarily resident’ in a different area, it (‘any local authority’ who has been taken care of the child) can claim ‘recoupment of costs’ from the area in which the child is ‘ordinarily resident’.
The crucial issue is determining ordinary residence of a child in this matter. Ordinary residence is determined either by agreement between local authorities or in default of agreement, by the Secretary of State. (See s. 30(2))
According to National Assistance Act 1948, the duty primarily lies on the authority in whose area the disabled person is ordinarily resident. (See s 24(1)).Ordinary residence is determined by the Secretary of State (See s.32 (3)). The Vale and Shah’s Tests were used as a guidance for the purpose of determining PH’s ordinary place of residence.
The summary of the tests are as follows:
The Vale test treats the mentally disabled person in the same way as ‘a small child who was unable to choose where to live’. Hence, Wiltshire, which arranged for PH’s accommodation with foster parents in South Gloucestershire had the primary responsibility under the Children Act 1989. However, a caution has been drawn to the relevance and use of this test, as its application will vary ‘according to the ability of the person to make their own choices and the extent to which they rely on their parents or carers’.
Similarly, in Shah’s test, there was no requirement to examine whether the disabled person had actually adopted the residence voluntarily. Accordingly, based on Shah’s test, voluntariness of PH to stay at South Gloucestershire was never an issue. The Shah’s test only required ‘examining the nature and purpose of the physical presence of the person in that particular place’. Thus, PH’s stay in South Gloucestershire was to serve the purpose of the 1989 Act – a short term measure in other to prepare PH for his transition to Adult Services. Hence, the responsibility lay on Wiltshire Council which had the primary duty under the 1989 Act to arrange for PH’s Child Services, and not South Gloucestershire.
The latter paragraphs of the Secretary of State’s guidance make reference to the provisions of the Children Act 1989, which stipulates that for the purpose of determining ‘ordinary residence’ of a child, the places where the child lived while still being provided with accommodation by or on behalf of the local authority that has responsibility for the child under the 1989 Act, should be disregarded when determining ordinary residence (s. 105(6)). So, by virtue of s.105(6), where a local authority (in this case, Wiltshire) has placed a child in accommodation out of area under the 1989 Act (in this case, South Gloucestershire), that local authority (Wiltshire) remains the child’s place of ordinary residence for the purpose of the 1989 Act. In other words, if this interpretation is followed, Wiltshire will be the local authority that has responsibility under the Act and not South Gloucestershire (which will be deemed as the place out of the area under the 1989 Act).
Also, by virtue of section 24(5) of the NA Act, 1948: “Where a person is provided with residential accommodation under this Part of this Act, he shall be deemed for the purposes of this Act to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him.” Hence, there is the presumption that the young person’s place of ordinary residence remains the same for the purposes of the 1948 Act (s. 24(5)) when they turn 18.
Application of the Laws by Courts
One of the main issues raised at the courts was whether South Gloucestershire should be deemed as the new acquired place of ordinary residence since the child has been there longer than other places?
According to the Secretary of State and High Court, the decision that Cornwall was responsible was mainly based on the entirety of the relationship of PH with his parents and not just the infrequency of the visits of the parents.
According to Court of Appeal (as per Elias LJ), the fact that PH had for a long time lived with foster parents in South Gloucestershire was a relevant factor to consider when assessing his ordinary residence at that time. Hence, South Gloucestershire was held to be the Council responsible.
On Appeal against the ruling of the Court of Appeal, Lord Carnwarth allowing the appeals (in agreement with others) reasoned as follows. With respect to persons unable to make decision for themselves, to determine their ordinary place of residence, Lord Carnwarth opined that ‘the seat of the decision-making power in relation to a mentally disabled adult is the authority making the placement (subject to any contrary determination by the Court of Protection), not the parents.’
He continued: ‘On this analysis it follows that PH’s placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached 18 he remained continuously where he was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and “swings and roundabouts” may be unavoidable.’
Comments and Observations
Wiltshire had the first and primary responsibility for PH care needs and this duty did not change simply because of PH’s placement in South Gloucestershire. This is in line with S. 21 and 24(5) of the National Assistance Act, 1948. To hold otherwise could encourage other local authorities to seek for ways (under S.23C of the Children 1989 Act) to abandon or place their responsibilities on other local authorities.
Secondly, to hold otherwise can encourage the scenario described by Lord Carnwarth, that is, other local authorities accepting to provide care depending on the long term financial burdens. Such a scenario would undermine the duty of providing care to children or disabled persons from other local authorities.
On the other hand, it is logical to think that the meaning of ‘ordinary place of residence’ should well fit in with South Gloucestershire, since this is where PH had spent most of his life. However, the law (s. 24 NA Act, 1948) places the decision making (in cases of children or adults with disabilities, particularly mental incapacities) not on the parents (or foster parents) but on the local authority in which the child is ordinarily resident, at least for administrative purposes. It is quite interesting that the court’s view of the ordinary place of residence for PH is based on this understanding and not on where he had stayed longer nor family relationship/ties. Against this background, Lord Wilson’s dissent is not surprising, as he believes the burden should be evened out. This seems to be a fair point for Wiltshire. Lord Wilson argues that the local authority of South Gloucestershire for the past 13 years had in effect been making decision for PH and not Wiltshire.
Chosen Udorji is a Ph.D. Candidate at the Sussex Law School