This post considers the decision in Milton Keynes v Scottish Ministers  CSOH 156, a case that examined how the interpretation of “ordinary residence” set out in R v Barnet LBC ex parte Shah  UKHL 1 should be applied in situations where an individual lacks mental capacity to decide where they should live.
Although this is a Scottish case, the opinion of the Court of Session is of interest for its observations on the requirement that a person must be shown to have “voluntarily adopted” their new place of residence before a change in ordinary residence can be established.
A deciding factor in the case was the absence of any legal authority (in the form of either a court appointed guardian or attorney) to make decisions about the incapacitated person’s personal welfare, including where they should live. This meant that the test in Shah could not be satisfied because the requirement that the person’s abode should be “voluntarily adopted” was not met.
The legal background
Section 86 (1) of the Social Work (Scotland) Act 1968 allows a local authority in Scotland to recoup the costs of providing care for a person from the local authority (including a local authority in England) where the person is ordinarily resident. The equivalent provision in England can be found in section 41 of the Care Act 2014.
A person’s place of ordinary residence is the legal basis for identifying which local authority is responsible for arranging and funding care and support services. The term “ordinary residence” is not defined in any legislation but its meaning was set out by Lord Scarman in Shah, who said that the term “ordinary residence” should be given its natural and ordinary meaning, stating that:
“Unless therefore it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being whether of short or long duration.”
In R v Waltham Forest London Borough Council ex p Vale, The Times 25 February 1995, the High Court was required to determine the ordinary residence of a young woman who lacked the capacity to form a settled intention in respect of where she should live. The court adapted the test in Shah by adopting a two-part approach to determining the ordinary residence of an incapacitated person, subsequently referred to as “Vale 1” and “Vale 2″.
The ” Vale 1″ approach involved taking the view that where the subject was so mentally handicapped as to be totally dependent on a parent or guardian, the concept of her having an independent ordinary residence of her own adopted voluntarily and for which she had a settled purpose did not arise. She was in the same position as a small child therefore her ordinary residence was that of her parents because that was her base. “Vale 2” involved considering the individual as if she were a person of normal mental capacity, and led to the same result since, the court said, the subject’s residence had all the attributes necessary to constitute ordinary residence within Lord Scarman’s test, albeit for short duration.
In R (Cornwall Council) v Secretary of State for Health and Somerset County Council  UKSC 46, Lord Carnwath, delivering the leading judgment, was critical of the Department of Health’s (DH) then guidance on ordinary residence that referred to the two approaches in Vale as comprising two separate legal tests, and also the weight the Secretary of State (SoS) placed on the so called Vale tests 1 and 2, both in the DH guidance on ordinary residence, and in SoS’s determination on ordinary residence in Cornwall. Rather, Lord Carnwath said, they were “complimentary common sense approaches to the application of the Shah test to a person unable to make decisions for herself; that is, to the single question whether her period of actual residence with her parents was sufficiently “settled” to amount to ordinary residence”.
The petitioner (Milton Keynes Council) challenged a decision of the Scottish Ministers (the respondents) dated 26 March 2015 determining that Mrs R (an 83 year old woman with dementia) was ordinarily resident in Milton Keynes for the purposes of section 86(1) of the Social Work (Scotland) Act 1968, even though she had moved to a care home in Musselburgh, East Lothian in February 2009 and had been living there ever since.
Mrs R had lived in her own home in Milton Keynes up until December 2008, when she was admitted to a specialist older person’s assessment unit following a deterioration in her physical and mental health. A mental capacity assessment found that she lacked capacity to decide where she should live. In January 2009, Milton Keynes Council (council) was appointed as her deputy for property and financial affairs.
However R’s daughter (T) decided to move her mother closer to where she lived in the Edinburgh, and identified a care home in Musselburgh, East Lothian as a suitable home for Mrs R. On 25 February 2009, Mrs R was discharged from the unit and driven by her daughter to Scotland where she was admitted to the care home on the same day. Neither the council nor East Lothian Council were involved in the placement or made any payments in relation to it. Funding was arranged privately between T and the care home. In June 2009, T was appointed her mother’s deputy for property and financial affairs in place of the council.
In July 2009 East Lothian Council assessed Mrs R under section 12A of the Social Work (Scotland) Act 1968 and found that she was in need of residential accommodation with nursing. East Lothian Council assumed responsibility as the authority of the moment for funding Mrs R’s placement. However it sought to recoup the costs from the council on the basis that there had been no change in Mrs R’s ordinary residence and the council was therefore responsible for funding the placement.
The subsequent dispute on Mrs R’s place of ordinary residence was referred to the respondents for a determination. Applying the ordinary residence test in Shah, and the guidance on ordinary residence and recoupment of costs in Scottish Government Circular No CCD 2/2010, the respondents determined that although Mrs R was now living in the area of East Lothian Council there had been no change in her ordinary residence for the purposes of section 86(1) of the 1968 Act. In particular, the respondents decided that, where the person lacked the requisite capacity, ordinary residence could only change where a welfare guardian or attorney was appointed who could give the necessary legal authority for the change.
The council petitioned for judicial review of the determination, challenging the decision on the grounds that the respondents had:
- Employed the wrong legal test in deciding that, in circumstances where the person concerned lacked capacity, ordinary residence could only change where a welfare guardian or attorney was appointed who could give legal authority for the change.
- Erred in law by failing to consider the correct periods of residence.
- Erred in their consideration of what constitutes a voluntary act.
- Acted perversely.
- In reaching their decision acted in a manner beyond their jurisdiction.
Decision of the Court of Sessions
The Court of Session rejected the council’s petition and held that the determination was made on a basis that was correct in law; it was consistent with the guidance of the Scottish Government as set out in the circular, and the respondents’ analysis of the dicta in the legal authorities cited, particularly those to be found in Shah and Cornwall, was correct.
The court observed that:
- The dictum of Lord Scarman in Shah remains the legal modern authority on the correct meaning of the expression “ordinary residence”, and his identification of the two requisite elements required in any assessment was neither overruled nor undermined by Cornwall.
- To the extent that in Cornwall the two approaches considered in Vale were reviewed, the conclusion reached was that they were not separable, but complimentary approaches to the test in Shah.
- On that basis, determination as to whether there has been a change in ordinary residence must necessarily involve an assessment of the extent to which any adoption of a particular abode has been voluntary. In the case of a person lacking capacity, such an assessment must necessarily involve a consideration of the nature of such legal authority as there is in place; that is consistent with the legal framework in place in Scotland to protect the interests of those lacking capacity.
- The lack of mental capacity on the part of Mrs R, and the absence of any legal authority on the part of her daughter Ms T to make decisions regarding her mother’s personal welfare was fatal to any prospect of a finding that, notwithstanding the duration of Mrs R’s presence in Scotland, there had been a change of her ordinary residence from Milton Keynes to East Lothian.
The council’s petition to apply for judicial review against the respondent’s determination on Mrs R’s ordinary residence was therefore refused.
Local authorities, in light of Cornwall, will be approaching the ordinary residence guidance in chapter 19 of the Care and Support Statutory Guidance with a degree of caution in so far as it advocates the application of the so-called Vale 1 and 2 tests. In a note issued on 15 October 2015, the DH indicated that it is considering the policy implications of Cornwall in relation to the determination of ordinary residence disputes in light of the judgment, and will issue further guidance in due course.
The Milton Keynes case reiterates the points made in Cornwall concerning the ordinary residence of individuals who lack capacity in so far as they are unable to voluntarily adopt a particular place of residence. The case also highlights the need to ensure that formal legal arrangements are in place for making important decisions about the personal welfare of persons who lack capacity, and the legal and financial consequences that can inadvertently arise when no such authority is in place.