This chapter an overview of the concept of ordinary residence which is used to decide which local authority is responsible for meeting an adult’s needs for care and support.
RELEVANT INFORMATION
CONTENTS
1. Introduction
Local authorities are only required to meet the care and support needs of adults who are ‘ordinarily resident’ in their area (or who are present there but have no settled residence. Ordinary residence is, therefore, crucial in deciding which local authority is required to meet the care and support needs of adults, and their carers. Whether an adult is ordinarily resident in the local authority area is a key test in determining where responsibilities lie for the funding and provision of care and support.
Ordinary residence is not a new concept – it has been used in care and support for many years. Usually establishing ordinary residence is straightforward, and the Care and Support Statutory Guidance contains guidance on how it is decided in some more complex situations, such as when a person is away at university for part of the year or has more than one home.
If local authorities cannot agree about ordinary residence, there is a process for appealing to the Secretary of State.
2. How does Ordinary Residence affect the Provision of Care and Support?
The test for ordinary residence, which is used to determine which local authority is 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 is the one where the adult being cared for is ordinarily resident.
The process of determining ordinary residence must not delay meeting the adult’s care and support needs. In cases where ordinary residence is not certain, the local authority where the adult is physically present should should meet the person’s needs while questions of ordinary residence are resolved.
3. How to Determine Ordinary Residence
Ordinary residence is not defined in the Care Act, but court cases have established that the team should be given its ordinary and natural meaning.
Local authorities should apply the principle that ordinary residence is the place a person has voluntarily adopted for a settled purpose, whether for a short or long period of time. Ordinary residence can be acquired as soon as a 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.
4. Cases where a Person Lacks Mental Capacity
All issues relating to ordinary residence and mental capacity should be decided with reference to the Mental Capacity Act 2005 (MCA). Under the MCA, it must always be assumed that adults have the mental capacity to make their own decisions, including decisions relating to where they live and the type of accommodation and care they would like, unless following a mental capacity assessment, it is decided that they do not have mental capacity to make those decisions.
The test for mental 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.
If an adult lacks mental capacity to make a particular decision, the MCA explains how decisions should be made for them. For example, if a person lacks mental capacity to decide where to live, a best interests decision about their accommodation should be made. Any act done, or decision made (including decisions relating to where a person without mental capacity should live) must be in their best interests. The Act sets out how to work out the best interests of a person who lacks mental capacity.
