Mental capacity, albeit very low levels thereof, is considered in the case law to be central to the notion of voluntariness, which is in turn part of the judges’ approach to the necessary features of having a place of ‘ordinary residence’.
Without mental capacity and some minimal means of being able to communicate some minimal level of contentment with one’s whereabouts, one cannot be said to be acting voluntarily, and one is then not ordinarily resident anywhere. This is why the making of a contract for one’s own care, elsewhere than in one’s usual or previous county or town, is strong evidence of a move, which was intended to be permanent. But that example assumes that the person is at least averagely mentally capacitated…
Department of Health guidance confirms that the term ‘ordinarily resident’ ‘should be given its ordinary and natural meaning’ subject to the decisions of law courts. In the Shah case, the House of Lords stated that unless legislation or the context require otherwise, ordinary residence refers to a person’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.
In case law, judges have tended to regard people with very low levels of capacity still as retaining an ability to do the above. In the case of Kim Salisbury the young woman in question was regarded as capacitated simply because she seemed happy where she was, which was with her ex foster parents. This maximises the autonomy of people with a learning disability and those suffering from dementia.
However, in older cases, the courts took a much more paternalistic line and deemed the very severely mentally disabled to be resident where their parents made them go, rather than taking the other option available in the statutory framework of regarding such people as being of no settled residence (see the Vale case). However, that case may have turned upon the fact that the parents were the full time carers of the woman when the issue arose; on the fact that she was not ordinarily resident anywhere else once her contracted care elsewhere had ceased, and the fact that the parents were together.
When one bears in mind that lots of people have divorced or dead parents and no other carer who is taking responsibility for them, and that case law now clearly holds that no-one has the legal capacity to make up their minds as to what is best for someone who is incapable of making a decision for themselves, it must be arguable that this approach is now invalid.
Certainly the Secretary of State’s determinations are consistent with severely mentally incapacitated people being of no settled residence, although the determinations specifically turn away from such a status, in the light of Vale still being binding on those who have to apply the law of ordinary residence.
It should be noted, however, that certain statutes turn upon ordinary residence as a condition for their discharge in someone’s favour – ie the CSDPA, under which services for the disabled are usually provided. Emphasis on any level of capacitated voluntariness as a part of ordinary residence status, therefore inevitably excludes severely mentally incapacitated people from eligibility for particular types of service, which cannot have been intended, in policy terms, and is even potentially discriminatory under article 14 of the HRA.
Fortunately there is wide duplication in other statutes of vague sounding definitions for services, so in most cases it should be possible to find some other statute, not using ordinary residence as a condition for eligibility, under which to provide a services: eg practical assistance in the home is the same as home help under the NHS Act schedule 8.