No5 Chambers barrister successful in Court of Appeal decision regarding community care

Hashi Mohamed, led by David Lock QC, has successfully represented Cornwall Council in a judicial review that No5 Chambers believes is likely to have far-reaching ramifications for local authorities across the country.

Over two days on 21–22 January 2014, Elias, Lewison and Floyd LJJ heard arguments from the claimant local authority, Cornwall Council, the Secretary of State for Health (SSH) and three other local authorities who appeared as interested parties.

This appeal followed the judgment by Beatson J who upheld the Secretary of State’s determination.

This community care case concerned a challenge to the decision by the SSH to determine the ordinary residence of an adult lacking capacity (PH) to decide where he wishes to live. The challenge was broadly two-fold, namely: (1) whether the SSH in fact had the power to determine the dispute at all; and (2) even if the SSH had the power, whether he had misdirected himself in law in wrongly applying the test in R v Waltham Forest LBC, ex p. Vale, 25 February 1985 (‘the Vale test’).

On the first question (§ 44-67), in rejecting Cornwall Council’s submission Lord Justice Elias undertook a careful analysis of the complex, and often overlapping, statutory framework, concluding that the Secretary of State was right to determinea live issue that was necessary to establish which authority had to provide the section 21 care’once the relevant adult reached 18.

On the second question regarding ‘ordinary residence’ (§ 68-84), the Court of Appeal was invited to pronounce, for the first time, on the two-part Vale test. The fundamental challenge by Cornwall contended that the SSH had erred in applying the first Vale test, thereby concluding that the ordinary residence of PH was that of his parents. In the present case, this was made especially more complex in the context where PH was being cared for largely by foster parents during his formative years.

In the circumstances where it was concluded that the SSH’s decision could not stand, their Lordships did not see any reason why the matter should be remitted back. At § 85, their Lordships reached the view that there was only one proper conclusion open to the Secretary of State, namely that at the relevant time PH was ordinarily resident in South Gloucestershire and not Cornwall. Accordingly, their Lordships made a declaration to that effect.

The Secretary of State and two interested parties have applied for permission to go to the Supreme Court.