Thoughts on the Cornwall Judgment

Having been wrestling with practitioners’ bemused questions about the state of play on Ordinary Residence over the past few months, I share Belinda’s relief at the common sense shown by the Supreme Court in finding Wiltshire liable.

This clarifies the situation in several ways which I think local authorities should find helpful in working out the liable council. As anyone who has been to CHL training will know, Annex H of the Care Act Guidance says that local authorities should:
“start from a preliminary assumption that the young person remains ordinarily resident in the local authority in which the child was ordinarily resident when they turned 18.”

The decision helpfully clarifies that that starting assumption cannot be too readily displaced in the case of a young person who lacks the capacity to decide their own residence.

The Supreme Court has helpfully confirmed that:
(1) An area cannot be someone’s ‘base’ without factoring in whether they do or have ever actually lived there
(2) Ordinary Residence cannot be based on the residence of a decision maker (parent or deputy) rather than the subject themselves
And also sorted out that for those who lack capacity to make residence decisions:
(3) Periods of out of area placement whilst a child are not enough by themselves to change ordinary residence, even where these are prolonged

Those of us who have spent months wrapping our brains around these issues are relieved by the clarity and coherence of this position. In many cases councils will find it easier to recognise when they should simply accept that they are responsible (though it remains to be seen whether all will do so in practice!). Councils and providers can heave huge sighs of relief and hopefully develop high quality, community based care, appropriate to the needs of individuals without fear of ‘dumping’.

This decision is hugely in the interests of young people who lack such capacity (many of them autistic). The clarity thus provided should cause local authorities who have such young people in their care to finally accept that they are, in most cases, going to continue to be responsible for them throughout their lives and to focus on the suitability of placements, rather than on which side of geographical borders they lie. It should very much improve transition planning for these young people – the fractured and frequently argumentative nature of which has often been a cause for concern.

The young people at the heart of these cases are not just costly burdens to be looked to for arbitrary savings in council budgets. They are people, not packages or exports to be fought over. I fear there are still O/R battles which remain to be fought through the courts, as Belinda highlights. But at least the outcome from this one is legally coherent and clear enough to sound a warning to councils about legally and ethically dubious attempts to export young people viewed as too costly.

Yo Dunn

About Yo Dunn

Yo blogs about social care, law and autism. She is a trainer and consultant who works across the public sector (primarily in social care and education), specialising in autism, legal frameworks and intersecting areas. More information at: www.consultyo.com and www.linkedin.com/pub/yo-dunn/3b/a6b/284. Yo has an academic background in social policy analysis and her doctorate is in educational research. She is autistic and a self-confessed legal geek. She is an experienced and well-reviewed public speaker and deeply involved in the adult autistic self-advocate community.

2 thoughts on “Thoughts on the Cornwall Judgment”

    1. Belinda SchwehrBelinda Schwehr

      It depends on how far back you would be asking Chris, and in what context.

      For instance, there are cases about children’s ordinary residence, that were not affected by the case or the Care Act, because they were about children who were still children, and covered by the Children Act 1989.

      If you mean what was the position for transitioning children, ie children who were about to cease being children, and transitioning to Adults’ Services, the case law tended to support the concept of continuity, so in that sense the Cornwall judgement, which was decided on the old law, not the new Care Act, did not change much. At least that was the case if the young person lacked capacity to sign a tenancy and was not someone with a deputy, and was a person needing residential care. If the person was a person who might well thrive in independent living the old council might have taken deputyship and then signed the person into a tenancy out of area, acting not as council, but as statutory agent, and that would have amounted to the person moving elsewhere under their own steam; and that USED to shift ordinary residence to the new authority. The same would have been true of a young person choosing to live in a tenancy, and choosing to live out of area.

      It was really the Secretary of State’s decision in the case before it went to Court that put the cat among the pigeons, by focusing on the concept of where the child’s ‘real base’ was, without regard to the fundamental problem that it took even the judges until it reached Supreme Court level, to really nail down.

      That fundamental issue of ambiguity is that the provisions on ordinary residence under the Children Act, only apply to children whilst children, and the provisions in the National Assistance Act about ordinary residence look back to the moment before Adult Services start to be responsible, without any clue as to what the law should be interpreted to be, when at that very moment, if the person needing adult services is a child who’s had children’s services, then another Act of Parliament, the Children Act, provides for DEEMED ordinary residence even if it’s not where the child is actually living, right up to the moment when children’s services stop.

      That Act does what IT does for ITS purposes, and the National Assistance Act does what IT does, for ITS own purposes; so the job of the Secretary of State, and for the Courts, when that office’s decision was challenged, was to determine whether the purposes were comparable and whether there was a way of making the policy work consistently for the fact that there’s a legislative ambiguity as to what should happen.

      I think the courts did a good job be regarding the policy of both Acts as continuity; and in effect, reading into the wording of the National Assistance Act – that in referring to where a person was ordinarily resident immediately before the council needs to provides Adult Services, the additional words: ‘deemed’ to be ordinarily resident, as well. I think that the law would be regarded as being the same under the Care Act, with this difference: even if the child needs ‘specified accommodation’ as an adult, the old authority will be liable, wherever that accommodation might end up being.

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