Judge: Beatson J
Citation:  EWHC 3379 (Admin)
Summary: This community care case, a judicial review of a decision of the SoS for Health as to the ordinary residence of an adult lacking the capacity to decide where they wished to live, merits a note for its consideration of the test set down in R v Waltham Forest LBC, ex p. Vale, 25 February 1985 and the guidance issued by the DoH upon the determination of ordinary residence for purposes of the National Assistance Act 1948.
In Vale, Taylor J set out two approaches, which are referred to as “test 1” and “test 2” in the Departmental Guidance. “Test 1” applies where the person is so severely handicapped as to be totally dependent upon a parent or guardian. Taylor J had stated that such a person is in the same position as a small child and her ordinary residence is that of her parents or guardian “because that is her base.” The second approach, “test 2,” considers the question as if the person is of normal mental capacity, taking account of all the facts of the person’s case, including physical presence in a particular place and the nature and purpose of that presence as outlined in Barnet LBC v Shah  AC 309, but without requiring the person himself or herself to have adopted the residence voluntarily.
The facts of the case are not relevant for present purposes, nor are the grounds of the judicial review challenge other than ground 4, the contention that the approach in Vale was inconsistent with House of Lords authority and the approach to mental incapacity set out in the MCA 2005. Cornwall’s case was that primacy should be given to physical presence in determining where a person was ordinarily resident for the purposes of the NAA 1948.
Analysing and rejecting the contention, Beatson J held as follows:
1. distinguishing Barnet LBC v Shah  AC 309 (in which Lord Scarman formulated the well-known test that residence must be voluntarily adopted for settled purposes), Beatson J noted that a test which accords a central role to the intention of the person whose ordinary residence is to be determined cannot be applied without adaptation when considering the position of a person who does not have capacity to decide where to live (paragraph 68);
2. distinguishing Mohammed v Hammersmith and Fulham LBC  UKHL 57, Beatson J noted that this was not a case concerned with a person lacking capacity, and also that it was concerned with “normal” not “ordinary” residence (paragraph 69). In any event, the concept of “normal” residence also accorded an important role to intention, and the approach adopted by the House of Lords to the definition proceeded on the basis that physical presence was insufficient in itself, and that was is required is an underlying attachment (paragraph 71);
3. cases upon the meaning of “resident” in s.117 MHA 1983 were not of assistance in construing the term “ordinary residence” in the NAA 1948 (paragraph 72);
4. the Vale case did not set out rules of law, but two approaches to the circumstances of a particular case, both of which involved questions of fact and degree (paragraph 74). It had been the subject of subsequent judicial endorsement, and significant reliance had been placed upon it by central and local government in formulating guidance, such that there needed to be a good reason to replace it and a satisfactory alternative approach (paragraphs 78-9);
5. whilst Cornwall contended that primacy should be given to physical presence, it was important not to accord insufficient weight to the fact that Parliament chose the concept of “ordinary residence” as opposed to “residence,” to the difference between those concepts, and to the other factors which are of relevance in determining ordinary residence (paragraph 79);
6. it was clear from the decided cases (including Shah and Mohamed) that physical presence is not sufficient to constitute ordinary residence (paragraph 80), and drawing the threads together, “ordinary residence” is a question of fact and degree, and if the SoS gets the law right, the determination of a person’s ordinary residence is for the SoS, subject only to Wednesbury unreasonableness (paragraph 85).
Applying these principles, Beatson J found (at paragraph 87) that the SoS had been entitled to examine whether there was a real relationship between the adult in question and his natural parents, and whether they were in fact making relevant decisions. As part of that, he was entitled to take account of the time spent by the adult with them in Cornwall. Although he did not expressly rule as to the relationship between the MCA 2005 and the determination of ordinary residence, Beatson J concluded (paragraph 88) that the SoS had taken account of the approach in s.4 MCA 2005, and that, in considering the approach of the adult’s family, the SoS had concluded that they viewed contact with the adult in terms of what was in his best interests.
Comment: This case stands as an endorsement both of Vale and of the DoH’s guidance upon the determination of ordinary residence in the case of those lacking capacity to decide upon questions of residence. It is also suggested that Beatson J was clearly right to reject a test based upon physical presence alone.
However, it is perhaps unfortunate that Beatson J did not pick up the gauntlet laid down by Cornwall and did not consider in any detail how Vale now reads in light of the passage of the MCA 2005. Whilst “test 1” in Vale undoubtedly serves a pragmatic purpose, viewed in the abstract it does not sit very easily with the principle of autonomy enshrined in the MCA. In its direct equation of the position of an incapacitated adult with that of a small child, it also stands at odds with the clear thrust of COP case-law, which is to the effect that the two can and should be treated as conceptually distinct (note, for instance, the clear rejection by the Court of Appeal in K v LBX & Ors  EWCA Civ 79 that there is any presumption when determining the best interests of an incapacitated adult that they should reside at home with their family). “Test 2,” by contrast, does not give rise to the same problems.
In this regard (and for the truly nerdy), it is instructive also to have regard to the consideration given by the Court of Protection to the definition of “habitual residence” in Re MN (Recognition and Enforcement of Foreign Protective Measures)  EWHC 1926. This question arose in the context of the jurisdictional provisions contained in Schedule 3 to the MCA 2005, which depend upon the concept of ‘habitual residence’ (a concept contained in the 2000 Hague Convention on the Protection of Adults but deliberately not defined therein). Hedley J held (at paragraph 22) that “[h]abitual residence is an undefined term and in English authorities it is regarded as a question of fact to be determined in the individual circumstances of the case.” Habitual and ordinary residence contain very strong similarities, and two important consequences of the approach adopted by Hedley J (and encapsulated in test 2 but not test 1 of Vale) is that:
1. an incapacitated adult’s habitual/ordinary residence is to be assessed primarily through a scrutiny of their position, not that their parents; and
2. an incapacitated adult can change their habitual/ordinary residence even if their parents do not.
The draft Care and Support Bill relies upon the concept of “ordinary residence” but does not in clause 32 address the question of how the phrase is to be interpreted in the context of those without capacity to decide where they wish to live. It may well be, therefore, that the Cornwall case is not the final word upon the subject.