Hashi Mohamed, led by David Lock QC, successfully represented Cornwall Council in a judicial review that’s likely to have far reaching ramifications for local authorities across the country.

Over two days on 21-22 January 2014, Elias, Lewison and Floyd LJJ heard arguments from the Claimant local authority, Cornwall Council, the Secretary of State for Health (“SSH”) and three other local authorities who appeared as Interested Parties.

This appeal followed the judgment below by Beatson J who upheld the Secretary of State’s determination.

This community care case concerned a challenge to the decision by the SSH to determine the ordinary residence of an adult lacking capacity (“PH”) to decide where he wishes to live. The challenge was broadly two-fold, namely (1) whether the SSH in fact had the power to determine the dispute at all; and (2) Even if the SSH had the power, whether he had misdirected himself in law in wrongly applying the test in R v Waltham Forest LBC, ex p. Vale, 25 February 1985 (“the Vale test”).

On the first question (§ 44-67), in rejecting Cornwall Council’s submission Lord Justice Elias undertook a careful analysis of the complex, and often overlapping, statutory framework; concluding that the Secretary of State was right to determine ‘a live issue which was necessary to establish which authority had to provide the section 21 care’ – once the relevant adult reached 18.

On the second question regarding ‘Ordinary Residence’ (§ 68-84) the Court of Appeal was invited to pronounce, for the first time, on the two part Vale test. The fundamental challenge by Cornwall contended that the SSH had erred in applying the first Vale test, thereby concluding that the ordinary residence of PH was that of his parents. In the present case this was made especially more complex in the context where PH was being cared for largely by foster parents during his formative years.

At § 75, Elias LJ said the following,

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. (Emphasis added)

Their Lordships resisted the temptation to recast the test in Vale but did make it clear that the Secretary of State had misapplied it in the instant case. In determining that PH’s base was that of his parents, their Lordships said that Cornwall was not his base and could not properly be so described (see § 76). Further, their Lordships gave guidance on how the first test in Vale ought to have been applied at § 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. (Emphasis added)

In the circumstances where it was concluded that the SSH’s decision could not stand, their Lordships did not see any reason why the matter should be remitted back. At § 85, their Lordships reached the view that there was only one proper conclusion open to the Secretary of State, namely that at the relevant time PH was ordinarily resident in South Gloucestershire and not Cornwall. Accordingly their Lordships made a declaration to that effect.

The Secretary of State and two interested parties have applied for permission to go to the Supreme Court.

Please click here for Hashi’s full Administrative and Public law CV.