R (Cornwall Council) v Secretary of State for Health

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Elias,Lord Justice Lewison,Lord Justice Floyd,Lord Justice Maurice Kay
Judgment Date19 Feb 2014
Neutral Citation[2014] EWCA Civ 12,[2013] EWCA Civ 1043
Docket NumberCase no: C1/2013/0279 (Z),Case No: C1/2013/0279/QBACF

[2013] EWCA Civ 1043

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(MR JUSTICE BEATSON)

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Lord Justice Maurice Kay

Case no: C1/2013/0279 (Z)

Between:
Cornwall Council
Applicant
and
Secretary of State for Health and Others
Respondent

Mr David Lock QC (instructed by Cornwall Council) appeared on behalf of the Applicant.

Ms Deok-Joo Rhee (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.

Lord Justice Maurice Kay
1

This is a renewed application for permission to appeal. Sir Richard Buxton granted permission to appeal on one ground, but refused it on others. It is to those others that the present application is directed.

2

The underlying dispute in this case is in the form of a demarcation dispute between local authorities as to which has to pick up the bill in relation to services provided to a highly disadvantaged young man known as PH. The present proceedings matter little to PH. They are not concerned with what happens to him, but with who pays. That centres upon a test as to where he was "ordinarily resident" at the material time.

3

The point before me is as to the legal definition of "ordinary residence" for these purposes. For many years an approach propounded by Taylor J in R v London Borough of Waltham Forest ex parte Vale (11 February 1985) has been the authority against which disputes of this kind have been resolved. The resolution of such disputes lies primarily in the hands of the Secretary of State who determines issues between local authorities pursuant to statute. The Secretary of State has promulgated guidance, but necessarily the guidance is based on an assumption that the case of Vale is correct.

4

The facts of this case demonstrate that it is only by a strained interpretation of the concept of ordinary residence that PH can be said to have been ordinarily resident in Cornwall on the relevant date. The fact that the interpretation is in my judgment strained does not necessarily mean that it is wrong, and the Secretary of State is justified in drawing attention to the fact that it is a test which has stood the test of time for many years. However, it has never been considered as a matter of principle in this court, and I am persuaded by the applicant's skeleton argument, notwithstanding forceful submissions to the contrary on behalf of the Secretary of State, that that strained interpretation ought now to be considered in this court. Because it is, in my view, strained, it necessarily follows that alternative interpretations, which I accept may themselves be productive of anomalies, are or may be arguable to the point of providing the applicant with a real prospect of success. "Real prospect" means no more than something in excess of a purely fanciful prospect of success.

5

Accordingly, for that reason and because I think it appropriate for the matter to be determined by this court, I am adding to the permission already granted by Sir Richard Buxton. It seems to me that the fact that there is to be an appeal in any event strengthens the argument for enabling this court to address the meaning of "ordinary residence" in this difficult context.

6

For those reasons I grant permission to appeal so that the appellant, Cornwall Council, can seek to persuade the court that "ordinary residence" should be determined otherwise than pursuant to the approach demonstrated by Vale. That is the additional ground in relation to which I grant permission. If the court is persuaded that there should be a different approach, then of course it will have to apply that different approach to the facts of this case.

Order: Application granted

[2014] EWCA Civ 12

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

MR JUSTICE BEATSON

CO/6708/2012

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Elias

Lord Justice Lewison

and

Lord Justice Floyd

Case No: C1/2013/0279/QBACF

Between:
The Queen on the Application of Cornwall Council
Appellant
and
The Secretary of State for Health & Ors
Respondent

and

(1) Wiltshire Council
(2) South Gloucestershire Council
(3) Somerset County Council
Interested Parties

Mr David Lock QC and Mr Hashi Mohamed (instructed by Cornwall Council Legal Department) for the Appellant

Miss Deok-Joo Rhee (instructed by The Treasury Solicitor) for the Respondent

Mr Hilton Harrop-Griffiths for the First Interested Party (instructed by Wiltshire Council Legal Department)

Ms Sarah Hannett for the Second Interested Party (instructed by South Gloucestershire Legal Department)

Mr David H Fletcher for the Third Interested Party (instructed by Somerset County Council Legal Department)

Lord Justice Elias
1

Local authorities have a wide range of duties, imposed under a variety of statutes, to secure the provision of care and other types of assistance for certain children and vulnerable adults. Criteria have to be identified to determine which authority has the obligation. In a general sense it will be the authority with which the individual has the closest connection. Some test has to be adopted to reflect that general notion, and typically this is to ask where the person is ordinarily resident, although sometimes the alternative formulae of normal or habitual residence are used. Usually the application of that test is straightforward and provides a clear answer, but not always. Human beings have the inconvenient habit of conducting their lives without regard to legal categories, and the application of the relevant test is sometimes highly problematic. The difficulties of applying the test are compounded where, as in this case, the vulnerable adult does not have the capacity to make a voluntary choice about where to live. Given the potential financial implications for whichever authority bears the burden, it is not surprising that there should from time to time be disputes between authorities, essentially about who pays. There is a stream of cases in different statutory contexts testifying to the difficulties of applying the test in atypical circumstances, and this is yet another. In this case the Secretary of State was (subject to an argument in this appeal) statutorily empowered to resolve the dispute. The issue he had to decide was where Philip, a severely disabled person lacking capacity, was ordinarily resident when he turned 18. He concluded that it was in Cornwall which, if he is correct, will therefore have to foot the not inconsiderable bill — currently estimated at some £80k a year — for providing the necessary care for Philip throughout his life. Cornwall challenged that determination by way of judicial review before Beatson J, as he then was, but were unsuccessful. They now appeal against his decision. Three other local authorities who consider that they potentially have an interest in the outcome were given permission to intervene and they made both written and oral submissions. The court is grateful for the assistance given by all counsel.

The facts

2

There was an agreed statement of facts before the Secretary of State. I gratefully adopt the summary derived from that statement set out in the decision of the Secretary of State. This was the basis on which he made his decision, and it has not been suggested that it is an inaccurate or incomplete statement of the material facts:

"2. The following information has been obtained from the agreed statement of facts and copy documents supplied. Philip was born on 27 th December 1986 and has complex disabilities including cerebral palsy, epilepsy, autism, right-sided hemiplegia together with a significant visual impairment. He has severe learning disabilities and is without speech.

3. In 1991, Philip's parents asked Wiltshire, in whose area they lived, to provide accommodation for him. Wiltshire placed Philip with foster parents, pursuant to section 20 of the Children Act 1989. The referral form entitled "Particulars of Child needing long-term family placement" dated 7 th June 1991 noted that Philip required a great deal of physical care. Mr and Mrs B resided in the area of South Gloucestershire. Mrs B held an appointeeship with regard to Philip's finances. The notes of the planning meeting held on 5 th November 1991 state that: "Since Philip left their household, it is clear that contact for both the family and for Philip is very important. Not only is contact important for the immediate family, but also for the grandparents who live in Dursley and Malmesbury respectively. In an ideal world any placement would be nearer Cornwall than either the present placement or anywhere in Wiltshire".

4. In November 1991, Philip's parents and siblings moved to Cornwall's area and have lived there ever since save for a period of less than a year (December 2002 to 2003) when Philip's father resided in Hong Kong for work. The Agreed Statement of Facts records at paragraph 11 that Philip's parents have been involved in decisions affecting Philip and have had regular contact with him.

5. Philip turned 18 on 27 th December 2004. In 2001, Wiltshire began corresponding with Cornwall given the anticipation that Philip would require accommodation pursuant to section 21 of the 1948 Act but no agreement regarding the responsible authority was reached.

6. On the 15 th April 2004, Wiltshire assessed Philip. It was recorded that...

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