Thoughts on the Cornwall Judgement
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.