Facts: P lived in Wiltshire cared for by his parents until Wiltshire Council placed him with long-term foster carers in South Gloucestershire, under the Children Act 1989. P remained living in South Gloucestershire with his foster carers until after he reached 18, at which time he was placed in Somerset, under the National Assistance Act 1948. In the interim, P’s parents had moved to Cornwall, where P occasionally visited them. The Secretary of State determined that Cornwall was responsible under the NAA 1948 because his parents’ home was P’s ‘base’. Cornwall appealed. The Court of Appeal held that P had become ordinarily resident in South Gloucestershire as a matter of fact and that no deeming provision required that P be treated as being ordinarily resident anywhere else.

Judgment: the Supreme Court (Hale, Carnwath, Hughes and Toulson JJSC; Wilson JSC dissenting) held that P must be treated as remaining ordinarily resident in the Wiltshire area. Although, applying the correct legal test, P might appear to have become ordinarily resident in Gloucestershire as a matter of fact, the policy of the legislation required one to deem him as remaining ordinarily resident in the area of the original placing authority, Wiltshire.

As to the correct legal test, a person with capacity to choose where to live was ordinarily resident in the place he had gone to live voluntarily, lawfully and for settled purposes as part of the regular order of his life for the time being, whether or short or long duration.

A person without the capacity to choose where to live was ordinarily resident in the place where he had gone to live lawfully and for settled purposes as part of the regular order of his life for the time being, whether or short or long duration.