Ordinary resident status

Ordinary resident status is a concept in the law of the United Kingdom which affects entitlement to the National Health Service. It formerly affected taxation, but the concept of ordinary residence was abolished for the purposes of tax years 2013/14 onwards.^[1]

Related concepts

Indefinite leave to remain and Right of abode are related concepts in immigration law. A person who is a British Citizen is not necessarily an ordinary resident in the UK.

Guidance

The official guidance issued to the NHS states: A person is ordinarily resident if they are normally residing in the UK (apart from temporary or occasional absences), and their residence here has been adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether for short or long duration.^[2]

The Guidance on implementing the overseas visitor hospital charging regulations 2015 extends to 131 pages, with a further 12 pages of guidance on Ways in which people can be lawfully resident in the UK. It is intended to assist NHS bodies in carrying out their duties under the regulations to make and recover charges for NHS hospital treatment from chargeable overseas visitors.^[3]

HM Revenue and Customs issued guidance (booklet HMRC 6) in respect of taxation which included reference to renting, leasing or buying property. This is not mentioned in the NHS guidance.^[4]

Law

Ordinary residence has not been defined by Act of Parliament. It has been developed in caselaw. The leading case is R V. Barnet London Borough Council, Ex parte Nilish Shah, which was decided by the House of Lords in 1982.^[5] The case was concerned with the meaning of ‘ordinary residence’ as used in the Education Acts. The five appellants were all students who had come to the UK to study. None of them had the right of abode in the United Kingdom. It established these principles:

Ordinary residence is established if there is a regular habitual mode of life in a particular place "for the time being", "whether of short of short or long duration", the continuity of which has persisted apart from temporary or occasional absences. The residence must be voluntary and adopted for "a settled purpose".

A person can be ordinarily resident in more than one country at the same time. This is not the case in respect of domicile.

Ordinary residence is proven more by evidence of matters capable of objective proof than by evidence as to state of mind.

Administration in the NHS

In October 2016 it was reported that the government had set a target of recovering £500 million a year from overseas visitors treated in NHS hospitals in England, which had been "refined" to £346m for 2017-18, according to the National Audit Office. £289m was collected in 2015-16 and £73m in 2012-13. The NAO reported that only 58% of hospital doctors knew some people were chargeable for NHS healthcare at all.^[6] According to Joseph Meirion Thomas, a former cancer specialist at the Royal Marsden Hospital failure to enforce the charging regulations is costing the British taxpayer £3 billion a year.^[7]

References