The recovery of expenditure on accommodation and services under section 86 of the Social Work (Scotland) Act 1968: guidance

Annex A: Determining the ordinary residence of individuals who lack capacity: the English approach

R v Waltham Forest London Borough Council, ex Parte Vale (1985) Times 25 February

In determining the ordinary residence of individuals who lack capacity, the approach in England differs in that it encourages a broader view than that in Scotland. In England, one of the alternative tests in the case of Vale is applied.

Vale 1

In this case, Taylor J set out that where a person's learning disabilities were so severe as to render them totally dependent on a parent or guardian then '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'. The judge rejected the possibility of the young person having an ordinary residence in a place that she had left or in a place where she may go in the future. This Vale test should only be applied in cases with similar material facts to those in Vale. Otherwise, the alternative test, Vale 2, should be applied.

Vale 2

The alternative approach involves considering a person's ordinary residence as if they had capacity. All the facts of the person's case should be considered, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person themselves to have adopted the residence voluntarily.

Vale 2 has been developed through the case law, in relation to when and how the test applies for the purpose of determining ordinary residence in cases where the person whose ordinary residence requires to be determined lacks capacity. Most recently, the case of R (on the application of Cornwall Council) v The Secretary of State for Health has been heard by the Supreme Court. This is further to the decision of the Appeal Court in this case which held that the test for ordinary residence, as set out in Shah, should be adapted in cases where an individual lacks capacity, so to adopt factors similar to those applied for the purpose of establishing habitual residence including, for example, a person's physical presence and social and family ties to a place.

This guidance will be reviewed and, if necessary, amended following the decision of the Supreme Court in Cornwall.