Because nothing is ever quite as simple as it seems, let’s now take a look at the types of situation where things get complicated and where a dispute arises as to ordinary residence.
I will start by saying that a lot of disputes start because one authority, or both, is misunderstanding the basic provisions discussed in my previous post. But those are the ones that are easy to resolve. The tricky ones can arise for a number of different reasons.
First, let’s discuss the cases where there are multiple pieces of legislation applicable, with contradicting ordinary residence provisions. This is something that the people drafting the legislation did attempt to address with the Care Act 2014. In that we have s39(4) which says that if someone is receiving accommodation under s117 as aftercare, and also receiving services under the Care Act 2014, the authority responsible under s117 will be responsible for both types of services. But it doesn’t address the other legislation that can also come into play. Primarily I am thinking about the leaving care provisions of the Children Act 1989, and the Children and Families Act 2014. Both of these impose duties that continue beyond the age of 18, and responsibility for those services will remain with the original authority that made the placement and/or maintains the Education Health and Care Plan.
Please remember that thanks to the Cornwall decision discussed in my last post, if a young person moves from a placement made by an authority under childcare legislation, into specified accommodation within the meaning of the Care Act 2014 then the original authority retains responsibility.
But I genuinely had a case where a young person had been placed in our area by another local authority before they were 18, under a care order, which triggered the leaving care provisions. She attended a residential college and had some social care support, but also had an Education Health and Care Plan in place. The other authority were trying to get our authority to pick up funding. We were not in a situation where the deeming provisions applied, so it was possible that we should be responsible for her needs under the Care Act. After taking advice from Counsel, we responded asking the other authority to break down what element of her support package they thought they were providing under the Care Act 2014.
The interplay between all of the provisions was so difficult to untangle (or so I assume) that the other authority never got back to me and continued to arrange and fund all of her support. It’s not that common that I come across a case where the dispute comes down to evidence of the precise powers used to deliver services, but it does happen.
Secondly, there are the cases where ties aren’t clear. It is all well and good to say that ordinary residence is decided on the basis of where the person has the most links or ties. But some people move around a lot. Perhaps it shouldn’t happen, but sometimes people bounce in and out of ‘the system’ for a while. Some domiciliary support here, a hospital admission there, showing up homeless in one authority, staying with a family member in another. Then their health deteriorates and they need some residential support.
Ultimately, they will be tied to one area more than any other, factoring in temporary absences and the like, or they will be considered to have no settled residence and then physical presence will be the answer. But believe me, you can spend a lot of time arguing about the ‘nature’ of residence in an area before the dispute is resolved.
Then there are the cases that are becoming quite common on my case load of late. The situation is this: one authority has been funding for years (and I do mean years). A practitioner goes out to conduct a review, but they’ve had some training recently on ordinary residence, from some lawyer or other, and now they are questionning whether the authority should ever have funded this case to begin with.
Generally speaking, there are 2 reasons why these are complicated: either you are going back so far you have to look at the deeming provisions under the National Assistance Act 1948; or there is a significant lack of records from the time the placement was made. Or sometimes, if you are really lucky, it is both.
Now I am planning on a separate post about record keeping, but let’s just say that if you can’t say whether or not someone had capacity to choose where they live at the time the placement was made, or the basis upon which the placement was made then it is probably best not to try exploring ordinary residence now. Certainly, if you come to me in that situation, you will get my patented record-keeping speech, and a lecture on the importance of evidence based decision making.
As to why the old provisions cause an issue, it means we have to dredge up the old law, and read the transitional provisions of the Care Act 2014. Neither is an easy read. Those deeming provisions do not apply to supported living as a rule, but they might if the local authority made the placement. So you have to look at how involved the authority was in choosing the placement and making the arrangements, including entering into any tenancy agreement. Yeah, you guessed it, I need records, and will become increasingly exasperated if they can’t be provided.
I also come across a number of cases where the issues have been caused, or at least exacerbated, by a failure of the authorities to follow the continuity of care provisions. A detailed review of those will need to be in another post. But when they are not followed and people suddenly show up on an authority’s radar without an understanding of how they came to be there, messes happen. Straight away questions start being asked as to which authority should be responsible. Because it is true that if a person decides to make their own arrangements, or a family member does so on their behalf, then ordinary residence will change. But if the local authority were wrong in how they applied the choice of accommodation regulations, or neglected and if their other duties, then it may not be so clear…
Linked to those cases, there are a times when a young person is placed with a foster carer as a child and those foster carers move into another authority’s area with the child. Deeming provisions with the Children Act 1989 apply. But as that child approaches the age of 18, discussions start bring had about adult placements. Shared lives comes up in conversation. Foster carers are interested. But then the details start to be explored. A dispute arises as to the terms of the shared lived scheme, or the money that the carers will be paid. 18th birthday comes around and it isn’t settled. Now the deeming provisions in S39 Care Act only apply to a properly registered shared lives scheme. So the Cornwall decision doesn’t help. Cue correspondence between the local authorities about whether the original placing authority correctly followed their duties, and exploring the difference between shared lives and staying put arrangements. On one case I argued that either:
- The customer needed a shared lives scheme, and the placing authority messed up in not getting one set up, so they remained responsible, or
- The customer’s needs could be met by staying put, which should be funded by the placing authority under leaving care, and there were no outstanding needs yo be met by my authority under the Care Act.
It seemed to work, as the other authority never took it any further.
The final type of dispute I am going to mention concerns accommodation under s117 Mental Health Act 1983. Either by design, or by oversight, the deeming provisions in S39 Care Act 2014 don’t apply. So the fact that authority X placed someone in the area of authority Y under s117, does not necessarily mean that authority X will retain responsibility in the event that the person is again detained under s3 Mental Health Act 1983. In many cases they will. But it isn’t automatic, and instead the authorities have to go back to the common law definition of ordinary residence, considering the nature of their residence, their ties to each area etc.
You see, things are rarely as simple as they seem.
My next post will explore the process to be followed in resolving ordinary residence disputes.
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