The Court of Appeal has recently revisited the vexed question of the determination of ordinary residence. In this case in relation to a severely disabled young adult who lacked capacity and considered the application of the test set out in R v Waltham Forest London Borough Council ex parte Vale (1985).
P had been born with multiple disabilities and was cared for by his parents in Wiltshire until they moved to Cornwall when he was placed with long-term foster carers in South Gloucestershire under s20 Children Act 1989. His parents were closely involved in decisions affecting him and visited him several times a year. P occasionally visited his parents in Cornwall.
The Secretary of State was asked to determine P's ordinary residence in order to establish which local authority had responsibility for P under s21 National Assistance Act 1948 when he turned 18. He applied the test from Vale (ie: where an adult so lacked capacity that he was totally dependent on his parents his place of ordinary residence was deemed to be coterminous with theirs) and accordingly determined that P was ordinarily resident in Cornwall. Cornwall sought judicial review of that decision. When it was upheld Cornwall appealed.
The Court of Appeal held that where the vulnerable adult had been living in only one place for many years that would almost inevitably compel the conclusion that it was his ordinary place of residence. It was not legitimate to avoid that common sense conclusion by the application of an artificial rule (ie: Vale) which gave no weight to the fact of residence at all. Application of the rule in Vale might produce the right answer where the parents were actually caring for their child themselves but the position was undoubtedly more complicated when they had delegated care of the incapacitous child to others.
In the context of severely incapacitated adults there was much to be said for adopting a test of ordinary residence similar to the test of habitual residence adopted for dependent children namely the place where the individual is integrated into a social and family environment. The place of ordinary residence might sometimes be with the parents even though he might spend more time with carers. However he would have to have a pattern of regular living with the parents before it would be possible to describe that as his own place of ordinary residence.
Applying that test the place where P had the closest social and family environment was South Gloucestershire: that was where he was integrated socially and emotionally with his foster parents and that was where he frequently saw his own parents. The Secretary of State had misdirected himself and his decision could not stand. There had only been one conclusion properly open to him namely that P's place of ordinary residence was South Gloucestershire.