PETITION OF MILTON KEYNES COUNCIL FOR JUDICIAL REVIEW OF A DECISION DATED 26 MARCH 2015 OF THE SCOTTISH MINISTERS DETERMINING THE ORDINARY RESIDENCE OF MRS JR
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 156
P672/15
OPINION OF LORD ARMSTRONG
In the Petition of
MILTON KEYNES COUNCIL
Petitioners;
for
Judicial Review of a decision, dated 26 March 2015 of the Scottish Ministers
determining the ordinary residence of Mrs JR
Respondents:
Petitioner: Poole QC; Balfour + Manson LLP
Defender: Ross; Scottish Government Legal Directorate
Interested Party: Komorowski; Allan McDougall
17 November 2015
Introduction
[1] The petitioners are an English local authority. The respondents are the Scottish Ministers. The interested party is East Lothian Council, a Scottish local authority. The case turns on the issue of what is the correct construction to be placed on the term “ordinary residence” for the purposes of section 86 of the Social Work (Scotland) Act 1968 (“the 1968 Act”).
[2] The essence of the decision by the respondents, dated 26 March 2015, (“the Determination”) 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 1968 Act and that, accordingly, for these purposes, she remained ordinarily resident in Milton Keynes. In deciding the matter as they did, the respondents had regard to the decision of the House of Lords in Shah v London Borough of Barnet 1983 2 AC 309 (“Shah”) and to Scottish Government Guidance Circular 3/2010 (“the Scottish Government Circular”).
[3] The petitioners challenge the Determination on five grounds, viz: (1) the respondents applied the wrong legal test; (2) they erred in law by failing to consider the correct periods of residence; (3) they erred in their consideration of what constitutes a voluntary act; (4) perversity; and (5) in reaching their decision, they acted in a manner beyond their jurisdiction.
The facts
[4] There was broad agreement amongst the parties as to the facts. Mrs R was born on 19 March 1932 and is now 83 years of age. She formerly lived in her own home in Milton Keynes, which is within the petitioner’s local authority area. In 2005, she was diagnosed with dementia. On 20 December 2008, following deterioration in her mental and physical health, she was admitted to the Waterhall Care Centre, a specialist older persons assessment unit within the petitioner’s local authority area. By order, dated 7 January 2009, the court of protection, appointed the holder of the office of finance manager of the petitioner as deputy for property and affairs of Mrs R. A mental capacity assessment determined that she lacked the capacity to decide for herself where she should live. Her daughter Ms CP, now CT, decided she would like her mother to reside close to her in the general area of Edinburgh. Ms T identified Adam Wood Care Home in Musselburgh as a suitable home. Adam Wood Care Home is within the local authority area of the interested party. Ms T was advised by the petitioner to approach the interested party about funding because it was of the view that Mrs R might be entitled to free personal and nursing care. On 25 February 2009, Mrs R was discharged from Waterhall Care Centre and was driven by Ms T to Scotland, where she was admitted to Adam Wood Care Home on the same day. Mrs R has lived in Adam Wood Care Home ever since. The interested party had no involvement in the placement of Mrs R in Adam Wood Care Home and nor initially did it make any payments in relation to that. Financial matters were arranged privately between Adam Wood Care Home and Ms T. By order, dated 2 June 2009, taking effect on 2 July 2009, Ms T was appointed deputy for property and affairs of her mother, replacing the holder of the office of finance manager of the petitioner. On 10 July 2009, Mrs R’s needs for community care services were assessed by the interested party in accordance with section 12A of the 1968 Act. The assessment concluded that she was in need of residential accommodation with nursing. Accordingly, the interested party assumed responsibility as “authority of the moment” for the funding of her care placement. The interested party has made payments to Adam Wood Care Home since 8 July 2009. Mrs R’s home in Milton Keynes was sold in 2010.
The applicable legislation
[5] The relevant provisions of the 1968 Act which give rise to the issue between the parties are the following:
Section 12(1):
“It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision of arranging for the provision of residential and other establishments) as they may consider suitable and adequate ...”;
Section 12(4):
“Assistance given in kind or in cash to or in respect of persons under this section may be given unconditionally or subject to such conditions as to the repayment of the assistance, or of its value, whether in whole or in part, as the local authority may consider reasonable having regard to the means of the person receiving the assistance and to the eligibility of the person for assistance from any other statutory body.”;
Section 12A(1):
“Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority –
(a) shall make an assessment of the needs of that person for the services; and
(b) shall then decide, having regard to the results of that assessment, ... whether the needs of the person being assessed call for the provision of any such services.”;
Section 86(1):
“Any expenditure which apart from this subsection would fall to be borne by a local authority –
(a) in the provision under this Act ... of accommodation for a person ordinarily resident in the area of another local authority, ... shall be recoverable from the other local authority, and in this subsection any reference to another local authority includes a reference to a local authority in England or Wales”;
Section 86(2):
“Any question arising under this section as to the ordinary residence of a person
shall ... be determined by the Secretary of State, and the Secretary of State
may determine that a person has no ordinary residence.”
Section 86(3):
“In determining for the purposes of subsection (1) of this section the
ordinary residence of any person or child, any period during which he is
provided with accommodation under this Act ... shall be disregarded”.
The relevant case law
[6] In Shah, Lord Scarman in stating that “ordinary residence” is a not a term of art in English law, opined at 340E:
“Two questions of statutory interpretation, therefore, arise. The first is: what is the natural and ordinary meaning of ‘ordinary residence in the United Kingdom’ ? ... The second is: does the statute in the context of the relevant law against the background of which it was enacted or in the circumstances of today ... compel one to substitute a special, and, if so, what, meaning to the words ‘ordinarily resident in the United Kingdom’?.”
He further stated, at 342C-E:
“I agree ... that in their natural and ordinary meaning the words mean ‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration.”;
and at 343G:
“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 of long duration.”;
and at 344B:
“There are two, and no more than two, respects in which the mind of the ‘propositus’ is important in determining ordinary residence. Residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is. And there must be a degree of settled purpose.”;
and at 345H-346B:
“By giving the words their natural and ordinary meaning one helps to prevent the growth and multiplication of refined and subtle distinctions in the law’s use of common English words. Nothing is more confusing and more likely to bring the statute law into disrepute than a proliferation by judicial interpretation of special meanings, when Parliament has not expressly enacted any.”
and at 349C:
“My Lords, it is, therefore, my view that local education authorities ... must ask themselves the question: has the applicant shown that he has habitually and normally resided in the United Kingdom from choice and for a settled purpose throughout the prescribed period, apart from temporary or occasional absences?”.
[7] In Regina (Cornwall Council) Secretary of State for Health and Another [2015] UKSC 46 (“Cornwell”), Lord Carnwath, when dealing with similar provisions to those of the 1968 Act, applicable in England by virtue of the National Assistance Act 1948, reviewed the authorities on the meaning of “ordinary residence”. Having referred to two earlier decisions of the House of Lords, he stated, at paragraph 41:
“Those authorities were followed in the leading modern authority on the meaning of the expression in a statutory context. That is the speech of Lord Scarman in R v Barnet London Borough Council, ex p Nilish Shah [1983] 2 AC 309.”;
and subsequently, having quoted Lord Scarman, as noted above, he went on to say, at 229 B-C,:
“The ‘mind’ of the subject was relevant in two respects. First the residence must be ‘voluntarily adopted’, rather than for example ‘enforced presence by reason of kidnapping or imprisonment’. Secondly, there must be ‘a degree of settled purpose’.”
[8] At paragraphs 45-48, Lord Carnwath considered the ratio of the decision in another case, R Waltham Forest London Borough Council, ex p Vale, The Times, 25 February 1995, (“Vale”). The case concerned the determination of the ordinary residence of a woman mentally incapable of forming a settled intention in respect of where to live. At the relevant time she had been living with her parents for a few weeks. The case was argued by reference to the Shah test of voluntary residence adapted for the situation in which there was a lack of capacity to form the relevant settled intention. The case identified two tests: subsequently known as “Vale 1” and “Vale 2”. At paragraph 46, under reference to a dictum of Lord Denning concerning the concept of a child’s “base”, in another case, Vale 1 was defined as follows:
“ ‘Where the (subject) ... is so mentally handicapped as to be totally dependent upon a parent or guardian, the concept of her having an independent ordinary residence of her own which she has adopted voluntarily and for which she has a settled purpose does not arise. She is in the same position as a small child. Her ordinary residence is that of her parents because that is her ‘base’, to use the word applied by Lord Denning in the infant case cited.’ (Emphasis added).”
Vale 2, the alternative approach, involved taking into account whether or not there were present “all the attributes necessary to constitute ordinary residence within Lord Scarman’s test, albeit for a short duration.”
[9] At paragraph 47, Lord Carnwath stated:
“... there was obvious sense in treating her few weeks living with her parents as sufficiently settled to meet the Shah test, whether by reference to the intentions of those making decisions on her behalf, or to the ‘attributes’ of the residence objectively viewed. With hindsight, it was perhaps unhelpful to elide the Shah test with the idea of a “base”, used by Lord Denning MR in a different context and for a different purpose. The italicised words in the passage quoted above cannot be read as supporting any more general proposition than that (the person’s) ordinary residence was to be equated with that of her parents, without reference to the period of her actual residence with them. Nor in my view should (the) two approaches be treated as separate legal tests. Rather 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 submissions
[10] Each of the parties lodged written notes of argument which were adopted and which I have taken into account, together with the oral submissions presented.
Submissions for the petitioner
[11] The Scottish ministers had reached the decision set out in the Determination by employing the wrong test. By deciding that, in circumstances where the person concerned lacked the requisite capacity, ordinary residence could only change where there had been appointed a welfare guardian or attorney who gave legal authority for a change, they had erred in law.
(i) Failure to apply the correct test.
The relevant test
[12] The test which should be applied in the instant case was, in effect, comparable to that of Vale 2. All that was required was an assessment of the characteristics of the residence. In circumstances where habitual residence and ordinary residence are the same for all practical purposes (Dickson v Dickson 1990 SCLR 692 (703B), a fact based approach such as that adopted In Re R(Children) (Reunite International Child Abductions Centre and others intervening) [2015] UKSC 35, should be used. In that case, at paragraph 13, Lord Reed quoted from the operative part of the judgment of the Court of Justice in Proceedings brought by A [2010] Fam 62, 69:
“2. The concept of ‘habitual residence’ under article 8(1) of council regulation (EC) No. 2201/2003 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that estate, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.”
[13] It was the stability of the residence which was important, rather than its duration. In that case it was emphasised that the essentially factual nature of the enquiry, into the degree of integration of the child in the social and family environment of the country concerned, should not be glossed by legal concepts which would produce a different result from that which the factual enquiry would produce (paragraphs 16 and 17).
Policy considerations
[14] It was argued that the scheme of section 86(3) of the 1968 Act points towards such a fact based approach. There were strong policy reasons for that. The system of service provision and its ongoing assessment under the 1968 Act required frequent contact between the service user and the providing local authority. It was more convenient to service users to liaise with the relevant authority of the area in which they were living.
[15] Under reference to R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33, at paragraph 7 and 8, emphasis was placed on the nature of the two stage test required by section 12A(1) of the 1968 Act. That case concerned a comparable provision equivalent to section 12A(1), applicable in England by virtue of section 47 of the National Health Service and Community Care Act 1990. At paragraph 8 of the decision it was recognised that a local authority’s social care resources were a factor relevant to assessment of needs and to the way in which such needs might be met. (See also Regina (KM) v Cambridgeshire County Council (National Autistic Society and others intervening) [2012] UKSC 23, at paragraphs 5, 15 and 19). If an assessment under section 12A(1) of the 1968 Act identified need and the second stage indicated that the need called for the provision of services, practical difficulties would arise in relation to the need to consider the availability of resources as against the demands upon them in circumstances where the ordinary residence of a service user was distant from the area of the providing local authority.
[16] Further, if it was the case that whether or not there was in place a court order or power of attorney, authorising welfare decisions on behalf of a person lacking capacity, was critical in determining which local authority should pay for services provided, then discrimination against those who were incapax would result. Whereas a person with full mental capacity could simply move from England to Scotland and obtain in Scotland free personal and nursing care not available in England, an incapax, in the absence of a guardianship order, power of attorney or other form of intervention order, could not.
(ii) Failure to consider the correct periods of residence
[17] The effect of section 86(3) of the 1968 Act was that periods in which a person was provided with accommodation, other than by a local authority, are not to be disregarded for its purposes, and in determining the person’s ordinary residence must be taken into account.
[18] Although in paragraph 57 of the Determination, the respondents stated that the issue of whether or not accommodation costs were recoverable from the pursuer was dependent on whether there had been a change of ordinary residence in the period from 22 February 2009 until 7 July 2009, they had in fact focused on whether or not as at 25 February 2009 a change of residence had been authorised by an appropriate guardian or attorney (paragraphs 58-64). Be that as it may, the respondents had fallen into error, by failing to identify what was the correct period for these purposes, in two respects.
[19] First, Mrs R had been assessed by the interested party, for the purposes of section 12A of the 1968 Act, on 10 July 2009, and subsequently the first payment by the interested party was made on 27 August 2009, and took effect from 1 September 2009. In adopting 7 July 2009 as the end point of the relevant period, the respondents appeared to have misunderstood the effects of the section 12A requirement. Since the relevant expenditure “under the Act” for the purposes of section 86(1)(a) of the 1968 Act was made only when the second duty required by section 12A was fulfilled, that is, on 1 September 2009, the respondents erred by failing to take into account the whole period from 22 February 2009 until 31 August 2009.
[20] Secondly, the respondents had failed to take into account any later period between 2009 and 2015. Under reference to section 86(3), it was submitted that during that later period, Mrs R’s accommodation had not in fact been provided by the interested party under the 1968 Act. It was within the knowledge of the respondents that Mrs R had been self-funding and had owned her own home. When her home was sold, in about November 2010 the net proceeds were in excess of £148,000. Time spent in residential care as the result of personal arrangement (that is, not provided or secured by a local authority) was not to be disregarded and, in such a case, a person’s ordinary residence could change by virtue of residence in such accommodation, depending on the overall circumstances (the Scottish Government Circular, paragraph 7). Where an individual chooses to move between local authority areas of their own accord without the relevant local authorities entering into an arrangement, their ordinary residence was likely to change, depending on the specific circumstances (the Scottish Government Circular, paragraph 11.1).
[21] The payments made by the interested party to Adam Wood Care Home did not cover the whole costs of the provision of accommodation there. Throughout the period from 2009 until 2015, the amount paid by the interested party had been fixed at £615.66 per week. The relevant fees of Adam Wood Care Home were in excess of that. Following the sale of her home, until 9 February 2015, Mrs R was treated as self-funding. Payments made by the interested party were not expenditure incurred under the Act in the provision of accommodation. In such circumstances, it could not be said that accommodation was being provided under the Act and accordingly the later period between 2009 and 2015 should have been taken into account. That lengthy period, which should have been taken into account, in assessing Mrs R’s ordinary residence, was wrongly disregarded by the respondents.
(iii) Error in construing the nature of voluntary actings
[22] The thrust of this submission was that in determining ordinary residence as they did, the respondents erred by relying on the Scottish Government Circular, which misstated the correct legal position as to the circumstances which ought to be taken into account when assessing whether or not any given decision or acting was voluntary. In the context of the need to consider the position of a person lacking mental capacity, the Scottish Government Circular (at paragraph 6.3) misstated the law as set out in the decisions of Shah, and Leven v Commissioners for Inland Revenue [1928] AC 217, and Cornwall. It was significant that voluntary acts were not limited to persons with full capacity. Persons lacking full mental capacity were nevertheless capable of making decisions in their own daily affairs, such as deciding which clothes to wear and whether or not to comply with instructions. Under reference to the passages quoted from Shah (as set out above) it was notable that in that case there was no express reference to any requirement for an appropriate guardian or attorney.
[23] The word “voluntarily” should be given its ordinary meaning. “Voluntary” simply meant “not compulsory”. What was set out in the Scottish Government Circular, as to how these terms should be construed, was not consistent with the treatment of their meaning apparent from the dicta in Shah. The reported cases indicated that it was appropriate to take into account what was in the mind of the incapax, without considering whether the legal authority to make the relevant decision lay with another appointed person. To adopt any other course would be to introduce a legal gloss and frustrate the ordinary and natural meaning of the terms.
[24] Further, the concept that it was important to take into account the views of persons lacking mental capacity, not least in recognition of the respect to be accorded to human dignity, was consistent with other comparable statutory regimes. Reference was made to the terms of the Mental Health (Care and Treatment) (Scotland) Act 2003, sections 1(3)(a), (c) and (g); and section 4; and of the Adults with Incapacity (Scotland) Act 2000, sections 1(3); and 1(4)(a) and (b).
[25] Since the content of the Determination made no reference to Mrs R’s own views, it was apparent that the respondents had failed to take them into account. That being so, there had been a failure to take into account a material consideration.
(iv) Perversity
[26] By referring to Mrs R’s “arguable settled physical presence in the local authority area of East Lothian” and to her “arguable loss of connection to Milton Keynes”, at paragraph 64 of the Determination, the respondents had recognised that there were factors relevant to the issue of whether her period of residence in East Lothian was sufficiently settled as to amount to ordinary residence. By failing to give proper weight to these factors, the respondents had reached a decision which was perverse. On the basis of the decision in Cornwall, the fact that Mrs R’s presence in East Lothian had all the attributes of settled residence should have been enough to determine a change of ordinary residence.
(v) Jurisdiction
[27] It was incumbent on the respondents not to exceed or abuse the jurisdiction, power or authority delegated to them (West v Secretary of State for Scotland 1992 SC 385, 412-3). At paragraphs 65-83 of the Determination, the respondents considered matters arising from section 21 of the National Assistance Act 1948. That was a statute which applied in England but not in Scotland, and in respect of which the respondents had no jurisdiction. The respondents had exceeded their jurisdiction because they had purported to decide matters they had no jurisdiction to determine. The respondents had decided that the petitioners ought to have provided Mrs R with accommodation under section 21 of the 1948 Act. It was submitted that, in any event, that decision was wrong.
[28] Further, four of the fourteen pages of the Determination were taken up with a consideration of these matters. It was submitted that the prominence given to consideration of these matters indicated that the issues arising, relative to section 21 of the 1948 Act, had formed a determinative part of the overall decision. On that basis, the respondents had wrongly taken into account matters which were not a material contribution.
Submissions for the respondents
[29] Counsel for the respondents adhered to his written arguments and adopted them. In relation to two aspects of the facts of the case, firstly, it was accepted that the interested party had made payments to Adam Wood Care Home with effect from 1 September 2009, rather than from an earlier date; secondly, it was emphasised that although Ms T had been appointed deputy for property and financial affairs with effect from 2 July 2009, she had no legal authority in respect of her mother’s personal welfare in consequence of that.
(i) The relevant test
[30] The petitioner’s submission that the respondents should simply have considered the single question of whether Mrs R’s residence in East Lothian was sufficiently settled to amount to ordinary residence was misconceived. Lord Scarman’s dicta as to the meaning of “ordinary residence”, set out in Shah at page 343G-H remained “the leading modern authority on the meaning of the expression in a statutory context” (Cornwall, per Lord Carnwath, at paragraph 41). Consequently, it remained the law that a person’s ordinary residence can only be changed if he or she adopts an abode in a particular place “voluntarily and for settled purposes”.
[31] The last two sentences of paragraph 47 of the decision in Cornwall, per Lord Carnwath, viz:
“Nor in my view should Taylor J’s two approaches be treated as separate legal tests. Rather 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 of whether her period of actual residence with her parents was sufficiently ‘settled’ to amount to ordinary residence.”
was not authority for the proposition that the issue should be determined by a single test. Properly construed, the passage was an explanation of how the two Vale approaches relate to each other and ought to be applied. Whether, and if so how, the Vale approaches should be applied would depend on the circumstances of the individual case. The facts of the case in Cornwall were characterised by Lord Carnwath as unusual (at page 231D). The facts under consideration in Cornwell were different from those in the present case. The consideration of the concept of “residence with her parents” could not be read across and applied in relation to Mrs R. She was not residing with a close relative in that way.
[32] Although the petitioners had characterised the approach of the respondents as a legal gloss (cf Cornwall, at paragraph 51), in fact the respondents had not approached the matter in that way. They had not attached importance to a “base” or the “seat of the decision-making”, based on the residence of the decision-maker or otherwise.
[33] It was clear that in the period following 25 February 2009, Mrs R had been living in a place not by her own settled intention, but, rather, by the choice of her daughter with a view to approaching the interested party in relation to the provision of free personal and nursing care. Ms T’s settled purpose or intention that her mother should live in East Lothian was not the same thing as Mrs R, herself, voluntarily adopting that settled purpose. Ms T’s intention could not somehow be translated into that of her mother. The reasons for the decision reached by the respondents were set out at paragraphs 58-64 of the Determination. These paragraphs included an accurate summary of the relevant applicable law. In particular, at paragraph 60, it was recognised that there was no automatic right to make decisions for another adult. Specific statutory procedures, introduced by the Adults with Incapacity (Scotland) Act 2000, were required if such a supervisory role was to be adopted.
[34] Paragraph 6.3 and 6.4 of the Scottish Government Circular, referred to in paragraph 61 of the Determination, were correct in their terms. On a proper reading of the decision in Shah, the conclusion set out as the last sentence of paragraph 62 of the Determination was correct. The approach set out in the Scottish Government Circular and adopted in the Determination was designed to create clarity and certainty. Its effect was that in cases where by reason of, for example, dementia, the element of intention was missing in the person affected, it could be supplied by the person with authority to make the necessary decision.
[35] The approach followed by the respondents, far from being inconsistent with authority, reflected the current state of Scots law, as indeed did the terms of the Scottish Government Circular. The argument for the petitioners that the wrong legal test had been applied was not made out.
(ii) The referable periods
[36] If the ratio of the Determination was correct, then the remaining grounds of challenge, characterised on behalf of the petitioners as failures consequent upon the failure to apply the correct test, fell away.
[37] A mental capacity assessment, carried out prior to Mrs R’s move from Milton Keynes, had determined that she lacked the capacity to decide for herself where she should live. In the light of that, importance had been properly attached in the Determination to the lack of her capacity to make a voluntary decision. In these circumstances, for the purposes of deciding whether there had been a change of her ordinary residence, it mattered not which periods were taken into account. There was no suggestion that she had later regained mental capacity. That being so, whether the period taken into account was that between 25 February 2009 and 7 July 2009, that between 25 February 2009 and 31 August 2009, or indeed any later period, could have no practical effect on the outcome of the Determination.
(iii) The nature of voluntary actings
[38] Contrary to the petitioners submissions, the term “voluntarily” as used in Shah, did not mean simply “without compulsion”, but rather bore its ordinary meaning of something done of one’s own free will or choice. The reference to a “Robinson Crusoe existence” in Shah at 344B-G, and “enforced presence” in Cornwall at 229B-C, were simply extreme examples of a situation which was not voluntary. Such examples of circumstances which would “negative the will to be where one is “ (Shah, at 344C) had no application in the case of Mrs R, where “the will to be where one is” was lacking in the first place. In the present case, the significant issue was whether Mrs R had “habitually and normally resided in (East Kilbride) from choice and for a settled purpose throughout the ... period …” (Shah, at 349C).
(iv) Perversity
[39] The implicit assertion that the respondents had reached a decision which was not within the range of decisions available to a reasonable decision-maker was predicated on them having applied the wrong legal test. For the reasons submitted on behalf of the respondents in relation to the relevant test, that challenge was unfounded.
(v) Jurisdiction
[40] As was plain from paragraphs 27-34 of the Determination, reference to the provisions of the National Assistance Act 1948 comprised a significant part of the petitioner’s submissions to the respondents. Paragraphs 65-83 of the Determination were properly to be read as the decision-maker taking account of substantive submissions which had been presented. The paragraphs were in any event plainly obiter. At paragraph 84, it was stated:
“Accordingly for the reasons explained in paragraphs 58-64 of this Determination, Scottish Ministers must determine that there has been no change to ... ordinary residence”.
No reference to the National Assistance Act 1948 was made in paragraphs 58-64, which were concerned with the legal test in fact employed by the respondents. The discussion of the 1948 Act did not impact on the decision in the Determination as to whether there had been a change of ordinary residence. On that basis, it could not be said that in considering the petitioner’s submissions in relation to the 1948 Act, the respondents had taken an irrelevant consideration into account.
Submissions for the interested party
(i) The correct legal test
[41] In addition to his own written arguments, counsel for the interested party adopted the submissions presented on behalf of the respondents. For the reasons set out on behalf of the respondents, since the ratio of the Determination was correct, the proper test having been applied, the petition should be refused.
(ii) The relevant periods
[42] Since the ratio of the Determination correctly focused on the lack of authority for any decision to change residence, the question of which periods should appropriately be taken into account was immaterial, and had no impact as a challenge to the validity of the respondent’s decision.
[43] For completeness, the position of the interested party was that it had sought conscientiously to discharge its duties under the 1968 Act. The payments made by the interested party with effect from 1 September 2009 were paid to Adam Wood Care Home in order to ensure that Mrs R did not go without care, on condition that such payments would be repaid by Ms T as her mother’s deputy for property and financial affairs. The issue of whether Mrs R was self-funding was not directly relevant to an assessment of need for personal and nursing care. Reference was made to the Community Care and Health (Scotland) Act 2002, section 1; regulation 2 of The Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002; and the 1968 Act, section 87. The practical effect was that section 86 of the 1968 Act provided a mechanism by which the interested party could claim from the petitioner the costs of provision of personal and nursing care.
(iii) Voluntary actings
[44] The interested party adopted the submissions for the respondents. There were two elements to ordinary residence, one physical and one mental. While the physical element was to be assessed by reference to the duration of presence, the mental element required to be voluntary and for a settled purpose. It was relevant to question whether there could be a settled purpose to live somewhere in circumstances where there was a lack of mental capacity sufficient to make an informed choice of place and where the place in question was in fact chosen by another. It was equally relevant to question, in such circumstances, whose purpose it was that was being put into effect.
[45] In the present case, it was artificial to infer from the single fact of residence at a particular place that there must be a settled purpose to live there. That would be appropriate in a case where there was full mental capacity, since the fact of residence at a particular place could be characterised as the product of choice. But such reasoning was inappropriate in the case of an incapax since the very thing which allowed such characterisation was lacking.
[46] In Cornwall, there was no disapproval of the concept of there being two elements comprising the Shah test, as set out at 229B-C. The alternative approaches, involving reference to intention on the one hand, and, on the other, to objective viewing of the attributes of the residence, were complimentary, but could not stand alone. Although, on a plain reading of Lord Carnwath’s dictum, it was clear that one element should not be subordinated to the other, that was, in effect, what the petitioners were submitting should have been the approach adopted in the Determination. The submission for the petitioners that it was sufficient, in assessing whether there had been a change of residence, simply to have regard to the attributes of the residence concerned was inconsistent with the decision in Cornwall. Further, in the absence of any relevant legal authority conferred upon her, Ms T’s intentions in arranging a change of residence for her mother could not impact on the issue. In the circumstances of a person who lacked mental capacity and required personal care, a scheme requiring legal authority to bring about a change of ordinary residence was entirely appropriate. The position in Scotland was appropriately regulated. It was no more surprising that there should be appropriate formality imposed on the making of decisions concerning such a person’s welfare than that such formality should be imposed in relation to the conduct of that person’s financial affairs, as was the case in relation to Mrs R.
[47] In any event, had the respondents ignored the issue of lack of capacity, they would have failed to take into account a material consideration.
(iv) Perversity
(v) Jurisdiction
[48] In relation to both of these aspects of the submissions for the petitioners, the interested party, under reference, in addition, to the written arguments lodged on its behalf, adopted the submissions of the respondents.
Decision
[49] I have rehearsed the arguments advanced in some detail in order to reflect the comprehensive manner in which they were presented. 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.
[50] I have disregarded any reference to the meaning to be applied to the term “habitual residence” on the basis that its interpretation is a doubtful guide to the different language which is referable to the issue in this case (Cornwall, at paragraph 48).
[51] I am satisfied that the analysis of the dicta in the cases cited, in particular those to be found in the decisions of Shah and Cornwall, as submitted for the respondents and the interested party, is correct. Whilst it must be recognised that the factual circumstances in these cases were not on all fours with the present case, on the basis of the reported cases cited to me, the dictum of Lord Scarman, as quoted in Shah, remains the leading modern authority on the correct meaning of the expression “ordinary residence”. His identification of the two requisite elements required in any assessment was neither overruled nor undermined by the dicta in 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. In that context, it is to be noted that the last three lines of paragraph 47 of the decision in Cornwall, viz:
“... that is ... the single question whether her period of actual residence with her parents was sufficiently settled to amount to ordinary residence.”
should, in my view, be read as an expression of the issue which was to be determined, rather than as a reformulation of the test set out by Lord Scarman in Shah, or as a statement intended to define exhaustively the constituent parts of the relevant test.
[52] 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.
[53] In such circumstances, the issues surrounding what constitutes the correct test in a case such as this, and what constitutes voluntary actings, are closely connected and to a considerable extent intertwined. Although I have sought to separate out the arguments advanced in relation to each of the grounds of challenge, the overlap between these two issues was reflected in the manner in which the parties’ submissions were presented, particularly by the respondents and the interested party. Be that as it may, I am satisfied that in reaching the decision which they did, the respondents applied the correct test.
[54] 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.
[55] It was suggested at one stage in the argument that, as a result of the application of the test employed by the respondents, discrimination would result to mentally disabled persons, relative to those with full capacity, who chose to relocate from England to Scotland to take advantage of free personal and nursing care. Such a situation, however, would not arise in circumstances where, as would normally be expected, a person to whom the appropriate legal authority and decision-making powers were delegated, was appointed.
[56] It was maintained for the petitioners that each of the five grounds of challenge were free-standing and that success on any one count should result in reduction of the Determination. However, the logic of this decision does not support that analysis.
[57] As I have already indicated, the respondents, in applying the correct test, were also correct in their consideration of whether Mrs R’s actings had the necessary voluntary character.
[58] In circumstances where the test in Shah could never be met as the result of the failure to meet the requirement for voluntary adoption of a different abode, any question as to which period of residence ought to have been taken into account for the purposes of determining whether the nature of Mrs R’s presence in East Lothian had the relevant attributes of residence, was consequentially immaterial to the decision.
[59] While on one view, from the perspective of a lay observer, having regard to the whole period and social context of Mrs R’s residence in Scotland, the decision by the respondents might appear to be at odds with the facts, or some of them, nevertheless the Determination, having proceeded on a correct basis and according to law, cannot be said to be perverse in the legal sense.
[60] In relation to the criticism that the respondents should not have considered section 21 of the National Assistance Act 1948, the matter should be viewed against a background which involved substantive representations on the issue made by the petitioners, to the respondents in their capacity as the decision-making authority. I am not persuaded that in addressing these submissions as they did, the relevant parts of the Determination which dealt with the subject were anything other than obiter. It is notable that at paragraph 72 of the Determination, the respondents stated:
“It is beyond the scope of Scottish minsters’ role in the determination of this dispute to comment on how section 21 requires or ought to be interpreted ...”.
In any event, for the same reasons that underlie the lack of any practical effect of the issue of whether the correct periods were taken into account, in circumstances in which the correct test was applied and the lack of appropriate legal authority was inevitably to be determinative, the issue of the effect of consideration of section 21 is also immaterial.
[61] I note, in passing, that the question for determination by the respondents was narrow and specific, and concerned only whether there had been a change of ordinary residence. Accordingly, any issue as to resultant entitlement to assistance or benefits was not a matter for them to consider. It was not suggested before the respondents that their decision should be influenced by such considerations and, in any event, it is not appropriate for this court to consider any such consequences arising from the Determination.
[62] 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.
Conclusion
[63] I therefore repel the petitioners’ second and third pleas-in-law, sustain the respondents’ fourth and fifth pleas-in-law, sustain the interested party’s second plea-in-law and refuse the petition. I reserve, meantime, all questions of expenses.