Introduction

This practice guidance is aimed at practitioners and managers. It provides an overview of the law, in England and Wales, in relation to ‘ordinary residence’ with resources to support practical, fair and effective decision-making.

The guidance supports:

• good quality decision-making about ordinary residence
• effective handling of disputes between authorities.

The main focus is on ordinary residence under the Care Act (CA) 2014 but it also touches on responsibility for after-care under the Mental Health Act (MHA) 1983 and supervision of deprivations of liberty under the Mental Capacity Act (MCA) 2005.

Why is ‘ordinary residence’ important?

Ordinary residence is important because it is the primary basis for determining:

• which social services authority is responsible for meeting care and support needs under the CA
• which social services authority is jointly responsible for providing after-care under the MHA
• which supervisory body is responsible for assessing and authorising deprivation of liberty safeguards (DOLS) in registered care homes and hospitals under the MCA.

The Care Act 2014:

The duty to meet care and support needs applies to adults ordinarily resident in a local authority’s area or present in its area but of no settled residence (s.18 (1)).

The Mental Health Act 1983:

A duty to provide after-care arises when a patient ceases to be detained under the treatment sections of the Mental Health Act (i.e. sections 3, 37, 45A, 47 and 48) and leaves hospital.

If, immediately before being detained, the patient was ordinarily resident in England or Wales, the duty to provide after-care falls on the local authority for the area in England or Wales in which the person was ordinarily resident. If the person had no place of ordinary residence, the duty falls on the local authority for the area where the person was resident and, if the person had no place of residence, responsibility falls on the local authority for the place of discharge (s.117 (3)).

The duty to provide after-care is a joint duty. Different rules apply to determining which Clinical Commissioning Group shares the joint duty under the MHA (s.117 (2E)) and the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules Regulations 2012, reg. 14).

The Mental Capacity Act 2005:

The supervisory body for DOLS is the local authority for the area where the relevant person is ordinarily resident or, if the relevant person is not ordinarily resident in the area of any local authority, it is the local authority for the area where the care home or hospital is situated (s.A1, paragraphs 180 and 181).

Where care or treatment in a hospital is commissioned by the National Assembly for Wales or a Welsh Local Health Board, and the relevant person is not ordinarily resident in England, the supervisory body is the National Assembly for Wales (paragraph 180 (3)).

Determining ordinary residence

There is no statutory definition of ordinary residence. The term should be given its ordinary meaning. In most cases establishing a person’s ordinary residence should be straightforward. Where a person has been living in the same place for a long time, has nowhere else to live, and has no intention to leave, the answer may be obvious.

Sometimes, however, the issue is far from clear-cut. Each case must be considered on its particular facts. Factors to take into account include: time, intention and continuity (the weight to be given to each factor will always depend always on the context) (Care and Support Statutory Guidance (19.14)).

The leading case is Shah v London Borough of Barnet [1983] 2 A.C. 309 in which Lord Scarman said:

…unless…it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that ordinarily resident refers to a man’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 long duration.

Local authority decision-makers should have regard to this test whenever deciding issues of ordinary residence. The key features are:

• where the person is actually living
• whether they are living there voluntarily
• whether they are living there for a settled purpose.

There is no minimum period for establishing ordinary residence where the purpose is settled (Care and Support Statutory Guidance (19.15))

Circumstances in which a person will not, or is unlikely to, acquire ordinary residence in the place where he or she is physically present:

• In prison, immigration detention or hospital under compulsory powers of the MHA (not ’voluntary’).
• During temporary absence from home; for example, on holiday or in hospital for a limited period (not for ’settled purpose’).

Determining ordinary residence where an adult lacks capacity to decide where to live

Practitioners should consider a person’s capacity to decide where to live while applying the principles of the MCA:

• A person must be assumed to have capacity unless the contrary is established.
• Capacity is time and issue specific: A person may have capacity to make some decisions but not others.
• It is not necessary for a person to have a detailed understanding of the funding of their placement.

For further guidance see 39 Essex Chambers’ Mental Capacity Law Guidance Note: A Brief Guide to Carrying out Capacity Assessments: www.39essex.com/wp-content/uploads/2016/08/Capacity-Assessments-Guide-August-2016.pdf

Where it is established that a person lacks capacity, the approach in Shah (set out above) should still be applied but without regard to the fact that, by reason of their lack of capacity, the person cannot be expected to be living in the relevant place voluntarily.

The Care and Support Statutory Guidance states:

…with regard to establishing the ordinary residence of adults who lack capacity, local authorities should adopt the Shah approach, but place no regard to the fact that the adult, by reason of their lack of capacity cannot be expected to be living there voluntarily. This involves considering all the facts, such as the place of the person’s physical presence, their purpose for living there, the person’s connection with the area, their duration of residence there and the person’s views, wishes and feelings (insofar as these are ascertainable and relevant) to establish whether the purpose of the residence has a sufficient degree of continuity to be described as settled, whether of long or short duration.

The deeming provisions

The CA includes statutory ‘deeming provisions’, the aim of which are to ensure that individuals placed ‘out of area’ remain the responsibility of the placing authority and do not acquire ordinary residence in the area of the ‘host’ authority.

These provisions apply where a person’s needs for care and support can only be met if that person is living in ‘specified accommodation’ provided by a placing local authority.

Note: Where a local authority has decided, following a care planning process, to meet a person’s needs in ‘specified accommodation’, it should be assumed that the person’s needs can only be met in that type of accommodation. The local authority is not required to demonstrate that the person’s needs cannot be met by any other type of support (Care and Support Statutory Guidance (19.50)).

Specified accommodation

Three types of accommodation specified under regulations are:

Care home accommodation: All registered care homes and nursing homes.

Supported living accommodation:

• Accommodation in premises which are specifically designed or adapted for occupation by adults with needs for care and support to enable them to live as independently as possible (this means accommodation which has been built or changed to meet the needs of adults with care and support needs).
• Accommodation which (although not specifically designed or adapted for this purpose) is intended for occupation by adults with care and support needs, in which personal care is also available (usually from a different provider).

Shared Lives scheme accommodation: Accommodation which is provided together with care and support for an adult by a Shared Lives carer.

NHS accommodation:

The deeming provisions also apply to ‘NHS accommodation’. This is not limited to hospitals; it applies to all NHS-funded accommodation, including all types of continuing healthcare-funded accommodation:

• Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014
• Care and Support Statutory Guidance (19.48).

Where the deeming provisions apply, a person’s ordinary residence is determined by reference to where that person was ordinarily resident immediately before they started living in ’specified accommodation’ or ’NHS accommodation’.

Deeming provisions- specific issues

Transitioning from care

Looked after children provided with accommodation out of area under the Children Act 1989 are treated as ordinarily resident in the area of the placing authority.

When ‘looked after children’ transition to adult services, if they are provided with ’specified accommodation’ under the CA, they should be treated as ordinarily resident in the area in which they were treated as ordinarily resident under the Children Act 1989.

Self-funders

The deeming provisions apply only where a person’s need for care and support is being met under the CA. They do not apply to individuals who fund and arrange their own care and chose to move to a different area. Where such individuals’ finances become depleted, and they approach a local authority for help, the responsible authority will be the authority for the area in which they currently reside.

The fact that an authority might provide support or guidance to an individual who chooses to move to a care home out of area does not mean that the authority retains responsibility for the individual.

The situation is different, however, where an authority is under a duty to meet an assessed need for accommodation of an individual who has sufficient means to pay for it (for example, because the individual lacks capacity to enter into a private agreement, and they have no deputy or attorney) or where it chooses to do so under its discretionary powers (for example, because the individual faces significant practical difficulties in making their own arrangements). In such circumstances the deeming provisions do apply.

12-week disregard

When assessing a person’s means to pay independently for care and support, the value of the person’s home must be disregarded for the first 12 weeks that the person is accommodated in a care home.

If a local authority meets a person’s needs for care and support by providing ’out of area’ care home accommodation during the period of a 12-week disregard, the deeming provision will apply.

If, at the end of the 12 weeks (when the person’s property value is taken into account), that person is required to pay for their own accommodation, and they enter into a private arrangement with the care home, the deeming provisions will cease to apply.

However, if the individual enters into a deferred payment agreement with the local authority, that authority will remain responsible for funding their care (minus any contributions from means-tested income and assets).

Change of type of accommodation

Where an individual moves from one type of specified accommodation to another (for example from supported living to a care home) they will remain the responsibility of the placing authority.

When a care home de-registers, the deeming provisions will continue to apply if the de-registered accommodation is supported living accommodation.

Determining ordinary residence

 

Practical considerations

Urgent needs

When a person presents with urgent needs, the local authority’s priority must be to ensure that those needs are met. Assessment of ordinary residence should not delay or prevent the provision of necessary care and support.

Local authorities have a power to meet the needs of individuals who are not ordinarily resident in their area and this power should be exercised in cases of urgent need.

Where a person in urgent need, present in one local authority area, is known to be ordinarily resident in another local authority area, and it is not practicable for that local authority to meet the person’s urgent needs, the authority ‘of the moment’ should meet those needs and inform the other authority that it is doing so (care and Support Statutory Guidance, Annex H, paragraphs 1-7).

Planned moves

In the case of planned moves out of area, the local authority with current responsibility for an individual should determine whether, in their view, that individual will remain their responsibility or become the responsibility of another local authority.

Where it concludes that the individual will become the responsibility of another authority (because the move is for settled purpose and the deeming provisions do not apply), it should inform the other authority of the proposed move in good time to allow the other authority to undertake appropriate assessments and care planning.

Cases of dispute

Where a dispute arises between two (or more) authorities, they should seek to resolve it between themselves and, if their attempts fail, refer the matter to the Secretary of State.

It is critical that the person concerned should not go without the care they need because the authorities are in dispute. The local authority that is meeting the needs of the person on the date that the dispute arises must continue to do so until the dispute is resolved. If no local authority is currently meeting the person’s needs, then the local authority where the person is living or is physically present must accept responsibility until the dispute is resolved. The local authority which has accepted provisional responsibility is referred to as the ‘the lead authority’.

The dispute resolution procedure is set out The Care and Support (Disputes Between Local Authorities) Regulations 2014 - www.legislation.gov.uk/uksi/2014/2829/made/data.xht - and is summarised on the following pages.

Dispute Resolution Tool

Steps prior to referral

Step 1: Initial steps

As soon as reasonably practicable after the date on which the dispute arises:

• The lead authority must:
• seek to identify all the other authorities concerned in the dispute
• coordinate discussions between those authorities in an attempt to resolve the matter.
• Each of the authorities must nominate an individual as the point of contact and provide contact details.

Step 2: Information-gathering

The lead authority must:

• Coordinate the dispute resolution process.
• Obtain relevant information from the other authorities.
• Disclose relevant information it has gathered or already holds to the other authorities.

Step 3: Seeking to resolve the dispute

• The authorities must take all reasonable steps to resolve the dispute between themselves and cooperate with each other in the process.
• Each authority must (i) engage in a constructive dialogue; (ii) comply, without delay, with reasonable requests for relevant information from the lead authority; and (iii) keep the other authorities informed of any developments relevant to the dispute.
• The lead authority must (to the extent it considers it appropriate) provide information to the individual concerned, or their representatives, about progress of the dispute.

Step 4: Referral to the Secretary of State

If the authorities cannot resolve the dispute between themselves within four months of the date on which it arose, the lead authority must refer the matter to the Secretary of State.

Referral to the Secretary of State

The referral

The referral must include:

1. A letter signed by the lead authority, stating that the dispute is being referred.
2. An agreed statement of facts signed on behalf of each of the authorities.
3. Copies of all correspondence between the authorities relating to the dispute.

The statement of facts

The statement of facts must include:

1. An explanation of the nature of the dispute.
2. A chronology of the events leading up to the referral.
3. Details of the needs of the person to whom the dispute relates.
4. A statement as to which local authority has met those needs, how, and under which statutory provisions.
5. Details of the person’s current place of residence, and any former places of residence relevant to the dispute.
6. Where capacity is relevant to the dispute, either (i) a statement that the authorities agree the person has, or does not have, capacity or (ii) information considered relevant to the issue.
7. A statement as to any other steps taken by the authorities in relation to the person which may be relevant to the dispute.
8. Details of the steps the authorities have taken to resolve the dispute between themselves.
9. Any other relevant information.

Legal arguments

Any legal arguments must be submitted within 14 days of the date on which the dispute was referred.

If a local authority submits legal arguments, it must serve them on the other authorities and provide evidence of service to the Secretary of State.

Determination

It can take several months for the Secretary of State to determine a referral. Full written reasons are sent to the parties once it has been determined. Anonymised determinations are then published online: www.gov.uk/government/collections/ordinary-residence-pages

Review

If a local authority disagrees with the Secretary of State’s determination it may request a review.

A review must commence within three months of the date of the determination; a local authority seeking a review must ensure that their request is received before expiry of the three-month period.

Useful resources

Legislation

Care Act 2014 www.legislation.gov.uk/ukpga/2014/23/contents/enacted

Mental Health Act 1983 www.legislation.gov.uk/ukpga/1983/20/contents

Regulations

Care and Support (Disputes Between Local Authorities) Regulations 2014 www.legislation.gov.uk/uksi/2014/2829/contents/made

Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014 www.legislation.gov.uk/uksi/2014/2828/contents/made

Statutory guidance

Care and support statutory guidance (see, in particular, chapter 19) www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance

Other guidance and practice notes

39 Essex Chambers - Mental Capacity Law Guidance Note: A brief guide to carrying out capacity assessments www.39essex.com/wp-content/uploads/2016/08/Capacity-Assessments-Guide-August-2016.pdf

39 Essex Chambers - Mental Capacity Law Guidance Note: Mental Capacity and Ordinary Residence www.39essex.com/mental-capacity-law-guidance-note-mental-capacity-ordinary-residence

LGA and ADASS - Ordinary residence guide: Determining local authority responsibilities under the Care Act and the Mental Health Act www.local.gov.uk/sites/default/files/documents/CHIP Ordinary Resident_FINAL COPY.pdf

Mental health aftercare in England and Wales - Arrangements for resolving disputes about mental health aftercare services involving local authorities in England and Wales www.gov.uk/government/publications/mental-health-aftercare-in-england-and-wales

Cover image: filo

With grateful thanks to: Keith Evans and Doreen Singleton

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