Supreme Court to hear key case on 'ordinary residence' in community care

The Supreme Court has agreed to hear a landmark appeal on the ‘ordinary residence’ test in community care cases.

The case of R (Cornwall Council) v Secretary of State for Health [2014] EWCA Civ 12 involved a dispute between three councils – Cornwall, Wiltshire and South Gloucestershire – over where Philip, a severely disabled person lacking capacity, was ordinarily resident when he turned 18.

The background to the case was that:

  • Philip’s family originally lived in Wiltshire;
  • He had been placed with foster parents in South Gloucestershire under s. 20 of the Children Act 1989. He remained in this placement for 13 years;
  • Philip’s natural parents and siblings moved to Cornwall at an early stage in this period. He visited the family home over Christmas and Summer.

The cost of Philip’s care was estimated at £80,000 a year throughout his life. No agreement was reached between the councils as to which of them should accommodate him pursuant to s. 21 of the National Assistance Act 1948.

Philip was placed in two care homes in Somerset, with funding from Wiltshire on a provisional basis.

The Secretary of State for Health concluded that Cornwall was responsible for meeting the bill, and the council challenged this determination by way of judicial review.

Cornwall lost in the High Court but succeeded in the Court of Appeal, which ruled that the Secretary of State had erred in applying the test in R v Waltham Forest, ex parte Vale (11 February 1985) without proper consideration of Philip’s actual place of residence and as if it were a rule of law.

The Court said the words ‘ordinary residence’ should be given their ordinary and natural meaning unless the context indicated otherwise. Rather than remit the case, the court concluded that the only conclusion properly open to the Secretary of State was that on his 18th birthday Philip’s ordinary residence was South Gloucestershire, where his foster parents lived.

See also: ‘Ordinary residence’ revisited – analysis of the Court of Appeal’s ruling from the community care team at 39 Essex Street.