Ordinary residence: the process

This is the third post in my overview series about ordinary residence. I’ve gone over the basics, and outlined some of the problem areas, so now I want to talk about the process i.e. How we actually go about resolving these disputes.

I have said it before and I will say it again: this is a process that takes place in the background. It should not prevent or delay anyone having access to care and support. One authority needs to assess needs and arrange support whilst discussions are ongoing. In most cases, this will be the authority that is already funding the support. If the person has not been receiving support before the issue has arisen, pragmatism tends to result in the local authority where the person is physically present supporting in the interim, since they will have easier access to the person.

I have broken this down into stages, as a tool for explaining the process, but this doesn’t come from any official guidance. It is just the easiest way for me to talk you through how this works. That being said, let’s begin.

Stage 1 – identifying a potential dispute

The first thing authorities have to do is work out which cases need to be looked at with ordinary residence in mind. Often, this comes about at an early stage, when an authority receives a referral and has a question about where responsibilities should lie. Other times it will come up during the course of an assessment, review etc. Depending on each local authority’s process, this will then lead to a conversation with a manager, social work practice lead, and/or some like me sitting in the legal team.

Stage 2 – information gathering

As I hope I made clear in my earlier posts, there are a lot of variables that can affect ordinary residence, and each case will have its own subtleties and nuances. So it is important that the local authority gets as much information as it can before making any final decisions about funding in the long-term, as opposed to in the interim.

That means that unless a practitioner comes to the legal team with all of the information right off the bat (which honestly never happens), there will be a lot of to-ing and fro-ing, or a number of telephone calls between the allocated practitioner and the lawyer involved.

Not to brag, but my authority has a cheat sheet that we send to practitioners, to help them work out the simple cases themselves, and also help them identify what information we’ll need to know to be able to advise them. And in case you are wondering, yes, this document was written by me. Was it part of my job? No. Did anyone understand why I spent time doing it? No. Do the rest of the team now shamelessly plug said document and take credit for the ingenuity of ‘the team’? Absolutely!

Anyway, this information gathering often involves a lot of ‘leg work’ on the part of the practitioner(s) involved. Because they’ll need to speak to the person to get some history, they might need to speak to family members or carers to confirm details. Capacity might be in question, needs might need to be assessed before a clear view can be taken as to whether it is worth raising a dispute with the other local authority.

Now the top tip from me is that where interim funding is in place, you want to start getting this on the radar of the other local authority as quickly as possible. When you start getting down to figures, you want to be able to point to a clear communication where your local authority has said ‘we are funding in the interim and will seek to be reimbursed for the cost of this in the event that it is determined that we are not the responsible authority’.

9 times out of 10, you are also going to need information from that other local authority to make a decision anyway. So a clear, concise letter or two as part of information gathering helps to keep things ticking along.

Stage 3 – lawyers doing lawyer things

You could call this the exchange of letters stage, or informal resolution or whatever terminology suits you. But basically this is where your lawyers start to earn their pay cheques.

Because this is when the lawyers will start putting together the sorts of letters that we are trained to do – setting out our legal arguments for why we think a person is ordinarily resident with another authority. We’ll quote case law at each other, argue about the interpretation of particular facts, poke holes in each other’s arguments and take digs at each authority’s ability to keep proper records. All the while we’ll be bouncing backwards and forwards with the practitioner that referred it in to legal checking up facts etc.

Now a lot of disputes are settled at this stage. Quite often one authority or the other will realise they are flogging a dead donkey and accept that the person is ordinarily resident in their area. That isn’t the end of it, though. See stage 5 – settling the bill.

Stage 4 – Secretary of State determination

If the authorities can’t agree it between them, then ordinary residence is determined by the Secretary of State (unless you have a cross border situation, and believe me, those are a headache). The guidance says that a dispute should be referred to the Secretary of State within 3 months of the dispute being raised. However, it is pretty difficult to pin down precisely when a dispute is raised with the other authority because so much correspondence will take place to just exchange information. Also, when the other local authority completely ignores your letters, it becomes very difficult to say when a dispute has started (because how do you know if they don’t agree with you, if they won’t respond at all). But in any event, this is a fairly toothless provision because it isn’t a set limitation period and there aren’t any consequences for raising a dispute that is ‘late’. So a lot of time is spent in stage 3 in the hope of being able to avoid the ordeal of preparing the papers for a Secretary of State determination. But eventually an impasse will be reached.

But in order to make a referral, the local authorities need to prepare an agreed statement of facts, and detailed grounds. Now agreeing a statement of facts can be tricky, especially if the other local authority is still ignoring you. So generally one authority draws them up, sends them over to the other authority and after a reasonable period of time, they’ll just send the papers off with an explanation of why they haven’t been agreed between the authorities. The lawyer (or often external counsel) will draw up the detailed grounds, pull together the evidence they are relying on and send everything off to the Secretary of State with a request for a determination. The other authority sends in a response and ultimately the Secretary of State will send out a determination saying which authority area is the person’s ordinary residence, and anonymised versions are published on the website.

Assuming no one plans to judicially review the Secretary of State’s decision, that will be the end of that part of the process. But that’s still not the time when us lawyers can close our file because there is still the matter of

Stage 5 – settling the bill

Because what the Secretary of State won’t do is say ‘and local authority X will pay local authority Y for the cost of the person’s care’. That would be far too simple. Rather, all they will say is ‘P has been ordinarily resident in area X since…’

We then have the statutory guidance that says authorities are to agree ‘financial adjustments’ between them. So this is more opportunity for lawyers to be lawyer-y. Because as a general principle, local authority Y will expect to be reimbursed from the date that the person became ordinarily resident in area X. But authority X will say that they will only reimburse from say, the date of the determination (which will really p### off local authority Y) or at least, the date when they were made aware of the issue. And in an ideal word, the difference between the day that ordinary residence was attained and the day the other authority was made aware of a potential dispute will be so small that it wouldn’t be worth arguing over. But that is not the world we live in. And the difference between the 2 figures can be significant.

Likewise, even if ordinary residence as a principle is agreed between the 2 authorities, this doesn’t stop there beige a whole separate argument about how much of a reimbursement a local authority should get.

So either way there’ll be some negotiation between the authorities, and more legal arguments will be exchanged. Local authority Y will draw attention to their audit trail of when they have raised the issue with authority X (hence my earlier top tip); authority X will have any number of arguments to throw back of varying strengths.

And the thing is, we don’t have case law on this. Because local authorities do not sue each other. We’re supposed to play nice, and resolve our issues as professionals without involving a court. No judge in the land is going to look kindly on authorities bringing actions against each other on the basis of the vagueness of these ‘financial adjustments’. There isn’t even a particularly clear cause of action to sue under – its rare that there will actually be an agreement between the authorities that interim costs will be settled based on the outcome of a determination. Local authorities have far too many commitment issues for that to occur regularly.

And a good lawyer will find some cause of action to threaten the other authority with. I know I’ve had to threaten a few but I won’t go into detail about these because a) it will be very long-winded b) most of you are not lawyers and won’t care anyway and c) what I have done has been champion blagging on my part and was, in all honesty, probabily well presented nonsense.

Only when agreement is reached about the bill, and a cheque has been received can it be said that an ordinary residence matter has truly concluded.

And all of that takes a really long time. Which is why interim support is so important.

And why I have about 10 unresolved ordinary residence issues sitting on my caseload that are going nowhere fast…

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