PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was living with foster parents in South Gloucestershire. He then lived in two care homes in the Somerset area. There was no dispute about his entitlement to that support, initially under the Children Act 1989, and since his majority under the National Assistance Act 1948. The issue was which authority should be responsible?
Held: The appeal was allowed (Wilson L dissenting). The decision-maker’s reasons for selecting Cornwall cannot be supported. The writer started, not from an assessment of the duration and quality of PH’s actual residence in any of the competing areas, but from an attempt to ascertain his ‘base’, by reference to his relationships with those concerned. In deciding what was the ordinary residence of an adult without mental capacity to allow a decision as to where he might live, the test was not whether because of incapacity he was to be treated as might a child and that his ordinary residence was that of his parents, despite his only occasional visits with them.
Lady Hale, Deputy President, Lord Wilson, Lord Carnwath, Lord Hughes, Lord Toulson
[2015 UKSC 46, [2015] WLR(D) 298, [2015] BLGR 503, [2015] HLR 32, [2015] 3 FCR 347, [2016] AC 137, (2015) 18 CCL Rep 497, [2015] 3 WLR 213, (2015) 145 BMLR 1, UKSC 2014/0092, UKSC 2014/0109
Bailii, WLRD, Bailii Summary, SC, SC Summary
Children Act 1989, National Assistance Act 1948 21, Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010
England and Wales
Citing:
At first Instance – Cornwall Council, Regina (on The Application of) v Wiltshire Council and Others Admn 21-Dec-2012
Dispute as to which council had obligation to support a young disabled man. . .
Appeal from – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Others CA 18-Feb-2014
The court considered how local authorities were to decide whether a citizen due to receive certain kinds of assistance was resident in or had the closest connection with a particular authority. In this particular case the issue arose in respect of a . .
Cited – In re P (GE) (An infant) CA 1965
A stateless child was taken by his father away from the mother in England to Israel.
Held: The wardship jurisdiction of the Court of Chancery extended to any child ‘ordinarily resident’ in this country. An infant of British nationality whether . .
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – Regina v Waltham Forest, Ex parte Vale 11-Feb-1985
The court had to decide what was the ordinary reference under the 1948 of an adult without capacity. V had been in residential care in Ireland for over 20 years, but having left there had been with her mother for two weeks. The parties argued the . .
Cited – Mohamed v Hammersmith and Fulham London Borough Council HL 1-Nov-2001
Mrs M came to England in 1994 living first in Ealing and then Hammersmith. Mr M came later and lived elsewhere in Hammersmith. Hammersmith gave them jointly temporary accommodation, first in a hotel and then in a flat. They then applied under . .
Cited – Hertfordshire County Council, Regina (on The Application of) v JM CA 15-Feb-2011
The court was asked which local authority had responsibility to provide support to a patient on his discharge after a period of detention under section 3 of the 1983 Act. . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – Inland Revenue v Cadwalader 1904
An American citizen, with his ordinary residence and indeed practising the law in New York, took a three-year lease of a furnished shooting lodge in Scotland. He resided at the shooting lodge for a period of two months in each year during the . .
Cited – Levene v Inland Revenue Commissioners HL 1928
Until 1919 Mr. Levene had been both resident and ordinarily resident in the UK. Then, for five years he spent about five months (mainly in the summer) each year, staying in hotels in the UK and receiving medical attention or pursuing religious and . .
Cited – Inland Revenue Commissioners v Lysaght HL 1928
The taxpayer, who was living in Ireland would come regularly to England for a total of less than three months a year, and would spend a week or so in a hotel for the purpose of board meetings. The House considered the meaning of the requirement of . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – Regina v G and R HL 16-Oct-2003
The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the . .
Lists of cited by and citing cases may be incomplete.
Benefits, Local Government
Updated: 02 January 2022; Ref: scu.549905