Ordinary residence: an introduction

No witty title for this one I am afraid. Instead I am going to get right to the point because this is a concept that many practitioners struggle with. It is also a big growth area in my work now that budget cuts are requiring increased scrutiny of every funding decision and allocation of resources.

Ordinary residence is the set of rules that dictate which local authority has duties under social care legislation (the Care Act 2014, and s117 Mental Health Act 1983). Clinical Commissioning Group responsibility is dictated by the NHS Who Pays guidance, not ordinary residence.

In most cases, ordinary residence is clear. As the courts have stated, these words have a clear meaning and where the person ordinarily resides is usually a simple matter of checking their home address.

But sometimes it is more complicated than that, because someone has recently moved, or they have been in hospital for a time, or been placed in residential care by a local authority or clinical commissioning group.

I am going to start with the case law. The big cases are Shah v London Borough of Barnet [1983] 1 All ER 226 (HL) and Cornwall v SSH [2015] UKSC 46. Both highlighted that in the absence of legislation that alters the position, an individual will be ordinarily resident in the area where they reside if that residence has been voluntarily adopted for settled purposes. This includes detailed analysis of their ties and connections to the respective local authority areas. This will include looking at where their family resides, where their friends are, which GP and dentist they are registered with, whether they own or rent property in either area , where they consider to be ‘home’ as well as how long they have been in an area.

That means that if someone chooses to move from area A to area B to be near their family, and rent a bungalow whilst trying to sell their house in area B, chances are if they find themselves in need of social care, they’ll be ordinarily resident in area B, not area A.

Now things get a bit more complicated if the individual lacks capacity to decide where to live. Because in such situations the person cannot be said to have ‘voluntarily adopted’ their place of residence. The courts have answered this question for us too. The Cornwall decision states that to establish ordinary residence in these cases you analyse their links to each area, and consider their views much as if you would if they had capacity, and there is no requirement for the residence to be ‘voluntary’.

Seems simple, right?

But then we get into the deeming provisions. And for some reason people get very confused about them. So I will spell these out too.

The purpose behind the deeming provisions is clear. If local authorities could remove their responsibility for a person by moving them out of area, then there would never be any in county placements made and no incentive to develop the local market. Certainly, the temptation to ship complex and expensive cases down the road to a neighbouring authority might be too tempting for even the most diligent budget holder…

And so we have s39 Care Act 2014 which states that if a local authority assess someone as needing specified accommodation, and then places that person in specified accommodation, they retain responsibility for funding until such time as the person no longer needs specified accommodation.

What is specified accommodation? I hear you ask. This is set out in the Care and Support (Choice of Accommodation) Regulations 2014. There are 3 categories of specified accommodation:

Care in a registered care (or nursing) home

Supported living placements

Shared Lives placements

Each of these is further defined in those regulations, if any of you should ever find yourself having to argue such a point with a social worker or lawyer being paid to be a bit pedantic.

And if you think you are being clever by suggesting that the local authority hasn’t actually made a placement, if it was chosen by family, you aren’t. It has been argued before. Repeatedly.

If family members genuinely go off and do their own thing, then yes, that might mean the local authority hasn’t made the placement. But if a social worker has been involved in establishing availability and suitability, then the local authority has made the placement.

And if you are thinking that that doesn’t make any sense, I remind you, again, of the choice of accommodation regulations. More on that on a later post.

All clear so far? Great

S39 Care Act requires that when establishing ordinary residence, periods of NHS accommodation should be ignored. So if they live in authority area C, but get hospitalised in area D, authority C is likely to retain responsibility. This also applies if an individual is placed in a different area as part of a package of continuing healthcare.

Things are relatively straightforward with young people transitioning from children’s to adults’ services. They didn’t used to be, but the Cornwall decision helpfully addressed this point too. So now we know, that if a person is placed in accommodation under child care legislation for which those deeming provisions apply (which include foster care and children’s homes) and on turning 18, they move to specified accommodation within the meaning of the Care Act 2014, then they’ll remain the responsibility of the placing authority. So no change in funding responsibility when they move from foster care to shared lives, or from a children’s home to supported living.

And then there is the further complicating factor of s117 aftercare under Mental Health Act 1983. But again, the answer has been clarified thanks to the legislative changes. S39 Care Act 2014 says that ordinary residence for these purposes remains the local authority area where they were ordinarily resident immediately before being detained in hospital.

So, it all seems pretty clear. There is nothing that local authorities could argue about at all, is there?!

Well you’d be surprised. More on that to follow on a later post…

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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