English council fails in challenge to Scottish Ministers’ decision over care home resident’s ‘ordinary residence’

A judge in the Court of Session dismissed the challenge by Milton Keynes Council and upheld the determination of the Scottish Ministers that there had been “no change” of the dementia sufferer’s “ordinary residence” when she moved from Milton Keynes to Musselburgh.

Lord Armstrong heard that the essence of the determination of 26 March 2015 by the respondents was that notwithstanding that “Mrs R” was living in East Lothian having previously lived in Milton Keynes, there had been no change of her ordinary residence for the purposes of section 86(1) of the Social Work (Scotland) Act 1968 and that, accordingly, she remained “ordinarily resident” in Milton Keynes.

The court was told that the 83-year-old had lived in her own home in Milton Keynes, but was diagnosed with dementia in 2005 and admitted to a specialist older persons’ assessment unit in 2008 following deterioration in her mental and physical health.

After a mental capacity assessment determined that she lacked the capacity to decide for herself where she should live, her daughter “CT” decided that she wanted her mother to live close to her in the Edinburgh area and identified a care home in Musselburgh as a suitable home.

Ms T was advised by the petitioner to approach East Lothian Council, an interested party in the proceedings, about funding because her mother might be entitled to free personal and nursing care.

In February 2009, Mrs R was discharged from the Waterhall Care Centre in Milton Keynes and was driven by her daughter to Scotland, where she was admitted to the Adam Wood Care Home on the same day and has lived ever since.

Financial matters were arranged privately between the care home and Ms T, who was later appointed deputy for property and affairs of her mother.

East Lothian Council had no involvement in the placement of Mrs R in the care home, nor did it make any payments in that regard until July 2009, when her needs for community care services were assessed by the local authority in accordance with section 12A of the 1968 Act.

The assessment concluded that she was in need of residential accommodation with nursing and accordingly, the council assumed responsibility as “authority of the moment” for the funding of her care placement.

In deciding that there had been no change of Mrs R’s ordinary residence for the purposes of section 86(1) of the 1968 Act and that she remained ordinarily resident in Milton Keynes, the respondents had regard to the 1983 decision of the House of Lords in Shah v London Borough of Barnet and to a Scottish Government Circular.

The petitioners, Milton Keynes Council, challenged the determination on five grounds, namely, that the respondents applied the “wrong legal test”, that they “erred in law” by failing to consider the correct periods of residence, and that they erred in their consideration of what constituted a “voluntary act”.

The petitioners also argued that the determination was “perverse” and that in reaching their decision, they acted in a manner “beyond their jurisdiction”.

However, the judge ruled that in reaching their decision the respondents “applied the correct test”.

In a written , Lord Armstrong said: “Having considered the issues arising in the light of the oral submissions made and the written notes of arguments, on behalf of all of the parties, I am persuaded that the case for the petitioners has not been made out. It appears to me, in the light of all the prevailing facts and circumstances, that the Determination was made on a basis which is correct in law and that it is reasonable in the sense relevant to such proceedings.”

The judge observed that the dictum of Lord Scarman in the House of Lords case of Shah remained the “leading modern authority” on the correct meaning of the expression “ordinary residence” and that the analysis of the dicta in that case and in the 2015 UK Supreme Court case of Regina (Cornwall Council) vSecretary of State for Health and Another - as submitted for the respondents and the interested party - was “correct”.

He continued: “On that basis, the determination of 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 mental 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 full capacity. The respondents and the interested party were correct therefore to assert that the Scottish Government Circular sets out a correct statement of the law in that regard, and that it was appropriate for the respondents to follow the guidance contained within it.

“On that basis, given the lack of mental capacity on the part of Mrs R, the absence of any legal authority on the part of 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.”

Lord Armstrong added: “In the event I find that the Determination is legitimate, transparent, plainly consistent with the guidance of the Scottish Government as set out in the Scottish Government Circular, and made according to law. The Determination is not inconsistent with legal authority and is not perverse or unreasonable. In reaching the decision which they did, the respondents did not act ultra vires, they did take into account all material considerations, and did not take into account considerations which were not material.”