Cornwall Council, R (on the application of) v Wiltshire Council & Ors (Rev 1) [2012] EWHC 3739 (Admin)

“27.1 [Wiltshire] considers that it accepted responsibility for [PH] until he reached the age of 18 but has not at any time accepted responsibility for him as an adult. Nonetheless it has provided services for him as an adult on a provisional basis pending this determination, formerly in keeping with LAC(93)7 and now with paragraph 2(2) of the Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010. 27.2 [Cornwall] considers that [Wiltshire] has accepted responsibility for [PH] and demonstrated this by their actions. It has continued to provide services for him as an adult and has at no time stated that this was on a provisional or without prejudice basis. 27.3 [South Gloucestershire] considers that [Wiltshire] accepted responsibility for [PH] until he reached the age of 18 but has not at any time accepted that it ought to be responsible for providing him with adult services when he became an adult. Nonetheless, after the he left [his foster parents’] home on 24th January 2005 it has provided services for him as an adult on a provisional basis pending this determination, formerly in keeping with LAC(93) and now with the paragraph 2(2) of the Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010.”

“17. The legal basis for the provision of [PH’s] placement between his 18th birthday and his move to Blackberry Hill is unclear. Given [PH’s] personal care needs this period cannot have been in accommodation provided pursuant to section 21 of the 1948 Act, as it would not have met the requirements of section 26(1A). It may have been provided pursuant to continuing duties under the 1989 Act, but the Secretary of State’s jurisdiction under section 32(3) of the 1948 Act does not extend to determining this. … 18. On [PH’s] 18th birthday, his need for accommodation under section 21 of the 1948 Act arose. I will determine [PH’s] place of original residence as of his 18th birthday, despite the fact that the section 21 accommodation was not in fact provided on his date, on the basis of the approach taken in the case of Greenwich. In Greenwich, the court looked at what the position would have been had arrangements been made under section 26 of the 1948 Act, and noted that the deeming provisions should be applied and interpreted on the basis that they had actually been put in place by the appropriate authority (paragraph 55 of the judgment). 19. As stated in paragraph 147 of the guidance issued by the Department, local authorities, in determining ordinary residence, can reasonably have regard to the 1989 Act and start from a presumption that the young person remains ordinarily resident in the local authority that had responsibility for them under the 1989 Act. … [Section 105(6) of the 1989 Act was set out and the decision in Northampton County Council v Islington Borough Council [1999] All ER (D) 832 was cited.] 20. …I consider that, for the purposes of the 1989 Act, [PH] was ordinarily resident in Wiltshire. Residence while accommodation was being provided by or on behalf of a local authority, in this case with foster carers, would be disregarded in accordance with section 105(6)(c) of the 1989 Act. 21. The starting presumption is that [PH] remained ordinarily resident in the area of the local authority which had responsibility for him under the 1989 Act, namely Wiltshire. However, as paragraph 149 of the guidance points out, this starting point may be rebutted by the circumstances of the case and the application of the Shah and Vale tests. That paragraph refers to various factors that should be taken into account in applying those tests. 22. First, I do not consider that [PH] was ordinarily resident in Wiltshire. He had no links to the area. [PH’s] parents and siblings left Wiltshire in November 1991, and [by December 2004] there were no…remaining ties with Wiltshire. …The mere fact that Wiltshire was the responsible authority for [PH] under the 1989 Act is not enough to affirm the presumption that he is ordinarily resident in Wiltshire from 27 December 2004. … 24. [PH] has severe learning difficulties and lacks mental capacity to decide where to live…The family home in Cornwall is a place to which [he] returns for holidays and his parents are in regular contact by telephone. In 2004 it was the case that [his] parents visited him four or five times a year. [His] parents have also been closely involved in decisions made in relation to his care. [His] father’s letter dated 6 January 2001 provides an example of this. From that letter…it is apparent that the family view the quantity of contact with [PH] in terms of what is in [his] best interests. It is clear from the social services papers that proximity to the family home and ease of travel to and from Cornwall has been a consideration in planning the care and support needs of [PH]. I consider that [PH’s] base is with [h]is parents. 25. I note that Cornwall question whether the family home in Cornwall can properly be described as a “base” for [PH] given the infrequency of his visits there. It is not merely the number or frequency of visits that are determinative. The entirety of the relationship between [PH] and his parents is to be taken into account, and when regard is had to that, it is clear that [PH’s] base remained with his parents. 26. Nor do I consider that [PH’s foster parents] can, despite the years spent caring for [PH], be treated, by analogy, as a parent, such that, in accordance with test 1 in Vale, [PH] could be considered to have been ordinarily resident in South Gloucestershire on 26 December 2004. [PH’s] natural parents remained his base throughout [PH’s] placement with [his foster parents]. His parents visited him, he stayed with them, and they were involved with decisions regarding his care and well-being. I do not consider [his foster parents] to have so far replaced the role of [PH’s] parents to be treated by analogy as [his] parents. 27. …[I]t was clear that [PH’s] remaining in South Gloucestershire was at 26 December a temporary matter. [PH] was to remain with [his foster parents] in South Gloucestershire only until his section 21 accommodation became available. It is clear from the papers that continuing with his foster carers was considered to be important and [they] have kept in regular contact, but this is now mainly by letters and cards. His school, respite care and church life were associated with this foster care placement, and ceased once he removed to the accommodation provided under section 21 of the 1948 Act. 28. For the reasons given above, I determine that [PH] was ordinarily resident in the area of Cornwall as of 26 December 2004.”

“That therefore is the question to be asked, and it is not appropriate to consider whether, in a general or abstract sense, such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else must not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is, for the relevant time, the place where he normally resides.”

“Habitual or ordinary residence is in each case a question of fact. The temptation to turn it into an abstract proposition should be resisted. Habitual or ordinary residence is not equivalent to physical presence. There can be ordinary or habitual residence without continuous presence, while physical presence is not necessarily equivalent to residence. Residence means living somewhere. The significance of ordinary or habitually is that it connotes residence adopted voluntarily and for settled purposes. That was the point emphasised before me and appears clearly from Shah. Although ordinary in one place can be lost immediately, acquisition of a new ordinary residence requires an appreciable period of time. The length of the appreciable period of time is not fixed, since it depends on the nature and quality of the connection with the new place. However, it may only be a few weeks, perhaps, in some circumstances, even days. In order to establish ordinary residence over a period of time a person must spend more than a token part of that period in the place in question. Ordinary residence is not broken by temporary or occasional absences of long or short duration. …”