Where an adult ordinarily resides is crucial for deciding which local authority is responsible for providing any required care and support needs. This chapter provides information for multi-agency practitioners in outlining the concept of ordinary residence

RELEVANT CHAPTERS

Promoting Wellbeing

Preventing, Reducing or Delaying Needs

RELEVANT INFORMATION

Chapter 19, Ordinary Residence, Care and Support Statutory Guidance (Department of Health and Social Care)

See also Ordinary Residence Case Studies

October 2017: This chapter has been updated to include changes in the Care and Support Statutory Guidance. Some of the sections have also been summarised to reduce the level of information in this chapter. See Chapter 19 of the Care and Support Statutory Guidance (as linked above) for the full detail.

1. Introduction

It is critical to the effective operation of the care and support system that local authorities understand which people they are responsible for, and that people themselves know who to contact when they need care and support. The local authority is only required to meet needs in respect of an adult who is ‘ordinarily resident’ in their area (or is present there but has no settled residence (see Section 5, Persons of no Settled Residence).

Ordinary residence is not a new concept – it has been used in care and support for many years. However, there have been in the past and will continue to be cases in which it is difficult to establish precisely where a person is ordinarily resident, and the Care and Support Statutory Guidance (2016) is intended to help resolve such situations. The Care Act 2014 also extends the principle of ‘deeming’ certain people to be ordinarily resident in a particular local authority’s area when some types of accommodation are arranged for them in another area, and the guidance also describes how these provisions should be put into practice. Local authorities cannot escape the effect of the deeming provision where they are under a duty to provide or to arrange for the provision of services.

2. How does Ordinary Residence affect the Provision of Care and Support?

The test for ordinary residence, which determines which local authority would be responsible for meeting needs, applies differently in relation to adults with needs for care and support and carers. For adults with care and support needs, the local authority in which the adult is ordinarily resident will be responsible for meeting their eligible needs. For carers, however, the responsible local authority will be the one where the adult for whom they care is ordinarily resident.

Local authorities must determine whether an individual is ordinarily resident in their area following he needs or carer’s assessment, and after determining whether the person has eligible needs.

The determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the local authority should meet the individual’s needs first, and then resolve the question of ordinary residence subsequently. This is particularly the case where there may be a dispute between two or more local authorities.

3. How to Determine Ordinary Residence

The local authority’s responsibility for meeting a person’s eligible needs under the Care Act is based on the concept of ordinary residence. However, there is no definition of ordinary residence in the Care Act. Therefore, the term should be given its ordinary and natural meaning.

In most cases, establishing the person’s ordinary residence is a straightforward matter. However, this is not always the case. There will be circumstances in which ordinary residence is not as clear cut, for example when people spend their time in more than one area, or move between areas. Where uncertainties arise, local authorities should always consider each case on its own merits.

Local authorities should apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.

For people who lack capacity to make decisions about their accommodation and for children transitioning into adult social care services, the judgment in the case of R (on the application of Cornwall Council) Secretary of State & Ors [2015] UKSC46 (Cornwall) is appropriate because a person’s lack of mental capacity may mean that they are not able to voluntarily adopt a particular place of residence.

4. Cases where a Person Lacks Capacity

All issues relating to mental capacity should be decided with reference to the Mental Capacity Act 2005 (MCA). Under this Act, it must be assumed that adults have capacity to make their own decisions, including decisions relating to their accommodation and care, unless it is established to the contrary.

The test for capacity is specific to each decision at the time it needs to be made, and a person may be capable of making some decisions but not others. It is not necessary for a person to understand local authority funding arrangements to be able to decide where they want to live.

  1. If it can be shown that a person lacks capacity to make a particular decision, the MCA makes clear who can take decisions on behalf of others, in which situations and how they should go about doing this. For example, if a person lacks capacity to decide where to live, a best interest’s decision about their accommodation should be made under the MCA. Under the Act, any act done, or decision made (which would include a decision relating to where a person without capacity should live), must be done in the best interests of the person who lacks capacity. The Act sets out how to work out the best interests of a person who lacks capacity and provides a checklist of factors for this purpose.

5. Persons of No Settled Residence

Where doubts arise in respect of a person’s ordinary residence, it is usually possible for local authorities to decide that the person has resided in one place long enough, or has sufficiently firm intentions in relation to that place, to have acquired an ordinary residence there. Therefore, it should only be in rare circumstances that local authorities conclude that someone is of no settled residence. For example, if a person has clearly and intentionally left their previous residence and moved to stay elsewhere on a temporary basis during which time their circumstances change, a local authority may conclude the person to be of no settled residence.

Local authorities have a duty to meet the eligible needs of people if they are present in its area but of no settled residence. In this regard, people who have no settled residence, but are physically present in the local authority’s area, should be treated in the same way as those who are ordinarily resident.

A local authority may conclude that a person arriving from abroad is of no settled residence, including those people who are returning to England after a period of residing abroad and who have given up their previous home in this country.

See also Ordinary Residence Case Studies.

6. Ordinary Residence when arranging Care and Support in another area

There may be some cases where the local authority considers that the person’s care and support needs can only be met if they are living in a specified type of accommodation. This could be in a care home, or other kinds of premises that are specified in the legislation. If the specified accommodation in which the care is provided is located in the area of another authority, it is important that there is no question as to which local authority is responsible for meeting the person’s needs.

The Care Act, and the associated regulations set out what should happen in these cases, and specify which local authority is responsible for the person’s care and support. Together, these create the principle that the person placed ‘out of area’ is deemed to continue to be ordinarily resident in the area of the first authority, and does not acquire an ordinary residence in the ‘host’ or second authority. The local authority which arranges the care in the specified accommodation, therefore, retains responsibility for meeting the person’s needs.

The regulations specify the types of accommodation to which this provision applies. They explicitly set out three types of accommodation:

  1. nursing homes / care homes: accommodation which includes either nursing care or personal care;
  2. supported living/extra care housing this is either:
    • specialist or adapted accommodation: this means accommodation which includes features that have been built in or changed to in order to meet the needs of adults with care and support needs. This may include safety systems and features which enable accessibility and navigation around the accommodation and minimise the risk of harm, as appropriate to the individual;
    • accommodation which is intended for occupation by adults with care and support needs, in which personal care is also available, usually from a different provider;
  3. shared lives schemes: accommodation which is provided together with care and support for an adult by a shared lives carer, approved by the scheme, in the shared lives carer’s home under the terms of an agreement between the adult, the carer and any local authority responsible for making the arrangement. The shared lives carer will normally be providing personal care but they will not need to provide it in every case.

There may be occasions where a provider chooses to change the type of care which it provides, for instance to deregister a property as a care home and to redesign the service as a supported living scheme. Where the person remains living at the same property, and their needs continue to be met by the new service, then ordinary residence should not be affected, and the duty to meet needs will remain with the first authority. This will occur even if the person temporarily moves to another address whilst any changes to the property occur.

7. NHS Accommodation

Where a person goes into hospital, or other NHS accommodation, there may be questions over where they are ordinarily resident, especially if they are subsequently discharged into a different local authority area. For this reason, the Care Act makes clear what should happen in these circumstances.

A person for whom NHS accommodation is provided is to be treated as being ordinarily resident in the local authority where they were ordinarily resident before the NHS accommodation was provided. This means that where a person, for example, goes into hospital, they are treated as ordinarily resident in the area where they were living before they went into hospital. This applies regardless of the length of stay in the hospital, and means that responsibility for the person’s care and support does not transfer to the area of the hospital, if this is different from the area in which the person was ordinarily resident previously.

This requirement also applies to NHS accommodation in Northern Ireland, Scotland and Wales. If a person who is ordinarily resident in England goes into hospital in Scotland, Wales or Northern Ireland, their ordinary residence will remain in England (in the local authority in which they ordinarily resided before going into hospital) for the purposes of responsibility for the adult’s care and support.

8. Mental Health Aftercare

See also Section 7, Care Act Amendments to Aftercare under the Mental Health Act 1983, Section 117 Aftercare.

Under section 117 of the Mental Health Act 1983 (‘the 1983 Act’), local authorities together with clinical commissioning groups have a joint duty to arrange the provision of mental health aftercare services for people who have been detained in hospital for treatment under certain sections of the 1983 Act. Aftercare services must have both the purposes of ‘meeting a need arising from or related to the person’s mental disorder’ and ‘reducing the risk of a deterioration of the person’s mental condition and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder.’ The range of services which can be provided is broad.

The duty on local authorities to commission or provide mental health aftercare rests with the local authority for the area in which the person concerned was ordinarily resident immediately before they were detained under the 1983 Act, even if the person becomes ordinarily resident in another area after leaving hospital.

9. Other Common Situations

9.1 Temporary absences

Having established ordinary residence in a particular place, this should not be affected by the individual taking a temporary absence from the area. The courts have held that temporary or accidental absences, including for example holidays or hospital visits in another area, should not break the continuity of ordinary residence, and local authorities should take this into account.

The fact that the person may be temporarily away from the local authority in which they are ordinarily resident, does not preclude them from receiving any type of care and support from another local authority if they become in urgent need. Local authorities have powers to meet the needs of people who are known to be ordinarily resident in another area, at their discretion and subject to their informing the authority where the person is ordinarily resident.

9.2 People with more than one home

Although in general terms it may be possible for a person to have more than one ordinary residence (for example, a person who divides their time equally between two homes), this is not possible for the purposes of the Care Act. The purpose of the ordinary residence test in the Act is to determine which single local authority has responsibility for meeting a person’s eligible needs, and this purpose would be defeated if a person could have more than one ordinary residence.

If a person appears genuinely to divide their time equally between two homes, it would be necessary to establish (from all of the circumstances) to which of the two homes the person has the stronger link. Where this is the case, it would be the responsibility of the local authority in whose area the person is ordinarily resident, to provide or arrange care and support to meet the needs during the time the person is temporarily away at their second home.

9.3 People who arrange and fund their own care

People who self-fund and arrange their own care (self-funders) and who choose to move to another area and then find that their funds have depleted can apply to the local authority area that they have moved to in order to have their needs assessed. If it is decided that they have eligible needs for care and support, the person’s ordinary residence will be in the place where they moved to and not the first authority.

9.4 Resolving ordinary residence and continuity of care disputes

In the majority of cases, determining ordinary residence should be straightforward. However, there will be occasions where a person’s residency status is more complicated to establish.

A question as to a person’s ordinary residence can only arise where two or more local authorities are in dispute about the place of ordinary residence of a person. In such a case, the authorities may apply for a determination to the Secretary of State or appointed person. Where the local authorities concerned are in agreement about a person’s ordinary residence, but the person is unhappy with the decision, the person would have to pursue this with the authorities concerned and could not apply to the Secretary of State or an appointed person for a determination.

10. Process for Seeking a Determination

There are regulations in place to resolve any dispute which arises in relation to a person’s ordinary residence. It is the responsibility of the lead local authority to make a request in writing to the Secretary of State or appointed person, together with a statement of facts and other documentation.