CARE ACT 2014
The Act helps the local authority identify a person’s ordinary residence for purposes of providing care and support. It also provides a mechanism for the local authority to reclaim money spent providing care and support to someone for whom they were not in fact responsible.
HULL SPECIFIC INFORMATION
See also Ordinary Residence Case Studies
August 2019: This chapter was amended to include a flowchart – Establishing Responsibility for Funding under S117.
- 1. Introduction
- 2. How does Ordinary Residence affect the Provision of Care and Support?
- 3. How to Determine Ordinary Residence
- 4. Change in Approach to Determining Ordinary Residence Disputes following the Supreme Court Judgment in R (on the application of Cornwall Council) v Secretary of State for Health
- 5. Cases where a Person Lacks Capacity to Decide where to Live
- 6. Looked after Children Transitioning to Adult Social Care Services
- 7. Historic Matters
- 8. Persons of No Settled Residence
- 9. Ordinary Residence when Arranging Care and Support in another Area
- 10. NHS Accommodation
- 11. Mental Health Aftercare
- 12. Other Common Situations
- 13. Resolving Ordinary Residence and Continuity of Care Disputes
- 14. Financial Adjustments between Local Authorities
- 15. Reconsidering Disputes
It is critical that local authorities understand which people they are responsible for, and that people themselves know who to contact when they need care and support.
Many of the local authority’s care and support responsibilities relate to the entire local population (see Information and Advice or Prevention, Reduction or Delay in the Development of Need). However, when it comes to determining which individuals have needs which a local authority is required to meet, it is only required to meet the needs of those who are ‘ordinarily resident’ in their area (or are present there but have no settled residence (see Section 8, Persons with no Settled Residence).
Ordinary residence is crucial in deciding which local authority is required to meet the care and support needs of adults, and their carers. Whether the person is ordinarily resident in the area of the local authority is a key test in determining where responsibilities lie between local authorities 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. However, there will always be cases in which it is difficult to establish precisely where a person is ordinarily resident. The Care Act 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. 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.
This chapter should also be read with the Care and Support Statutory Guidance Annexes, which provide further detailed guidance on specific situations and circumstances which may arise, and where the question of ordinary residence may be unclear.
2. How does Ordinary Residence affect the Provision of Care and Support?
Ordinary residence is one of the key tests which must be met to establish whether a local authority is required to meet a person’s eligible needs. It is therefore crucial that local authorities establish at the appropriate time whether a person is ordinarily resident in their area, and whether such duties arise.
Local authorities must determine whether an individual is ordinarily resident in their area following the needs or carer’s assessment, and after determining whether the person has eligible needs (see Eligibility Framework).
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.
2.1 Adults and carers
The test for ordinary residence, which determines which local authority would be responsible for meeting needs, applies differently in relation to adults 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. Establishing responsibility for the provision of care and support for carers, therefore, requires the local authority to consider the ordinary residence of the adult needing care. There may be some cases where the carer provides care for more than one person in different local authority areas.
Where there is more than one local authority involved, those authorities should consider how best to cooperate and share the provision of support. For example, where there are services or interventions that directly relate to the caring responsibilities towards one individual (for example, equipment installed in the carer’s home to accommodate one of the people), then it would be a straightforward matter of the relevant authority being responsible. Where that same piece of equipment serves for other people cared for, then the local authorities concerned should agree how to arrange the package. There might be an agreement to jointly fund the support for the carer, or the authorities concerned may agree that one takes overall responsibility for certain aspects. For example, one might lead on reviews because it is geographically closer to the carer’s home.
The Care Act contains all the necessary powers for joint assessments and support planning, plus the duties to co-operate to provide a mechanism for one of the authorities to require the cooperation of the other, if needed.
3. How to Determine Ordinary Residence
The local authority’s responsibility for meeting a person’s eligible needs is based on the concept of ordinary residence. There is, however, 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.
There will be circumstances in which ordinary residence is not 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.
The concept of ordinary residence involves questions of both fact and degree. Factors such as time, intention and continuity (each of which may be given different weight according to the context) have to be taken into account. The courts have considered the meaning of ordinary residence and the leading case is that of Shah v London Borough of Barnet (1983). In this case, Lord Scarman stated that:
unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that ordinarily resident refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.
Local authorities must always have regard to this case when determining the ordinary residence of adults who have capacity to make their own decisions about where they wish to live.
Local authorities should in particular 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. There is, however, a key factor which must be taken into consideration here. If a local authority has assessed someone’s needs and is seeking to place them in specified accommodation (nursing or residential care, supported living or shared lives) and the person chooses to be placed in a different local authority area, this is covered under the right of choice set out in the Care Act 2014 and the person’s ordinary residence does not change.
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  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. Change in Approach to Determining Ordinary Residence Disputes following the Supreme Court Judgment in R (on the application of Cornwall Council) v Secretary of State for Health
The statutory guidance sets out the changes to the approach to determining ordinary residence (OR) disputes between local authorities in relation to:
- adults who lack capacity to decide where to live and;
- looked after children transitioning to certain adult social care and other accommodation.
This follows the judgment that was handed down on 8 July 2015 in the Supreme Court, in the case of R (as above).
This case concerned the ordinary residence determination made by the Secretary of State in March 2012 that on 26 December 2004 (the day before PH’s 18th birthday), PH was ordinarily resident in Cornwall where his parents lived. In reaching this determination the Secretary of State applied his understanding of the law as decided in the case of R v Waltham Forest ex p. Vale (1985) (‘Vale’) in respect of the tests to apply to determine the ordinary residence of adults who lack capacity to decide where to live. Cornwall council sought a judicial review of the determination. The determination was upheld by the High Court but reversed by the Court of Appeal who held that PH was ordinarily resident in South Gloucestershire where he had been placed as a child by Wiltshire and had lived for 14 years with his foster carers.
The decision was appealed to the Supreme Court who held that PH was ordinarily resident in Wiltshire, the authority which had placed him in South Gloucestershire.
The Court made this decision because of the broad similarity between the deeming provisions in children’s and adult legislation, the underlying purpose of which was that an authority should not be able to transfer its responsibility for providing the necessary accommodation by exporting the person who is in need of it. The Court said that:
- a person who is placed by local authority A in accommodation in the area of local authority B under the Children Act 1989 and remains there until he or she becomes 18 is to be regarded on reaching 18 as remaining ordinarily resident in local authority A for the purpose of the deeming provisions in the National Assistance Act 1948.
- the department’s reliance on the case of Vale to substitute an alternative test of ordinary residence, based on ‘the seat of (his) decision-making’, or otherwise on his relationship with his parents and their home, in relation to adults lacking capacity to decide where to live depended on a misunderstanding of that judgment.
Changes to the approach to ordinary residence reflecting the above findings are detailed below.
5. Cases where a Person Lacks Capacity to Decide where to Live
See also Mental 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 have capacity to make some decisions but not others. It is not necessary for a person to understand local authority funding arrangements to have capacity to decide where they want to live.
If it can be shown that a person lacks capacity to make a particular decision, the MCA makes clear how decisions should be made for that person. For example, if a person lacks capacity to decide where to live, a best interests decision about their accommodation should be made 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 or made in the best interests of the person who lacks capacity. The MCA sets out how to work out the best interests of a person who lacks capacity and provides a checklist of factors for this purpose.
Where a person lacks the capacity to decide where to live and uncertainties arise about their place of ordinary residence, direct application of the test in Shah will not assist since the Shah test requires the voluntary adoption of a place.
The judgment says in relation to the Secretary of State’s argument that the adult’s ordinary residence must be taken to be that of his parents as follows:
‘it is the residence of the subject, and the nature of that residence, which provide the essential criterion…..’
The judgement also refers to:
- the attributes of the residence objectively viewed;
- an assessment of the duration and quality of actual residence;
- residence being ‘sufficiently settled’.
To establish the ordinary residence of adults who lack capacity, local authorities should adopt the Shah approach, and have no regard for the fact that the adult, by reason of their lack of capacity does not live there voluntarily.
This involves considering all the facts including:
- the place of the person’s physical presence;
- their purpose for living there;
- the person’s connection with the area;
- their duration of residence there;
- the person’s views, wishes and feelings (as far as these are ascertainable and relevant).
To establish whether the purpose of the residence has a sufficient degree of continuity to be described as settled, whether of long or short duration.
Physical presence provides a starting point for considering ordinary residence but does not necessarily equate to ordinary residence – a person could be physically present in an area but of no settled residence.
In certain situations, ordinary residence could be deemed to be in a different area to that in which a person is physically present (see Section 6, Looked after Children Transitioning to Adult Social Care Services, Section 8, Persons of No Settled Residence and Section 9, Ordinary Residence when Arranging Care and Support in another Area.
6. Looked after Children Transitioning to Adult Social Care Services
Prior to the Cornwall judgment, a looked after child who had been placed in accommodation out of area retained the ordinary residence of the local authority who had made the placement, however upon the child turning 18 that presumption could be rebutted by the circumstances of the case.
In Cornwall, the Supreme Court held that a looked after child who had been placed in foster care in local authority A by local authority B and who was ordinarily resident in local authority B, continued to be ordinarily resident in local authority B when he reached 18 for the purposes of deeming provisions in the 1948 Act. The Supreme Court set out that the underlying purpose behind deeming provisions in both children’s and adult legislation is that: ‘an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it.’
This means that any person who moves from accommodation provided under the Children Act (1989) to accommodation provided under the National Assistance Act or the Care Act, , remains ordinary resident in the local authority in which they were ordinarily resident under the Children Act. This includes a situation where a child has been placed out of area under the Children Act as a looked after child, and requires residential accommodation under the National Assistance Act or the Care Act at age 18 as well as leaving care support under the Children Act.
The accommodation to which the adult deeming provisions apply is:
- ‘specified accommodation’ (under the Care Act in circumstances where the adult’s needs can be met only if they are living in accommodation of a specified type. The types currently specified are: care homes, shared lives scheme accommodation and supported living accommodation;
- NHS accommodation (under the Care Act);
- residential accommodation (under the National Assistance Act);
- NHS accommodation (under the National Assistance Act).
6.1 Accommodation to which deeming provisions do not apply
The above guidance applies where the person is provided with the specified accommodation as set out above for looked after children who have been placed in residential accommodation out of area under the Children Act and who transition to adult social care services.
In cases where those deeming provisions do not apply, although the provisions of the Children Act normally no longer apply once a young person reaches 18 local authorities should start from a presumption that for the purposes of the National Assistance Act or the Care Act, the young person remains ordinarily resident in the local authority in which they were ordinarily resident under the Children Act.
However, this is only a starting point and if the young person remains in the area in which they were placed as a child or moves to a new local authority area the presumption may be rebutted by the circumstances of the individual’s case and the application of the Shah test.
7. Historic Matters
In relation to historic matters, the position on ordinary residence might have been understood to be different to that which it would have been under the principles established in the Cornwall judgment, whether following a determination of a dispute or otherwise. If local authorities have concerns about this, they are advised to seek their own legal advice.
The Supreme Court’s judgement in the Cornwall case applies retrospectively to all cases now, after judgement was given in July 2015.
8. 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.
The Care Act make clear that 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, British citizens resuming permanent residence in England after a period abroad.
9. 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 as specified below. 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 Care and Support (Ordinary Residence) (Specified Accommodation) Regulations set out what should happen in these cases, 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 retains responsibility for meeting the person’s needs.
The regulations specify the types of accommodation to which this provision applies. It explicitly sets 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.
Where an adult’s care and support needs can only be met if they are living in one of the specified types of accommodation and the accommodation arranged is in another area, then the principle of ‘deeming’ ordinary residence applies. This means that the adult is treated as remaining ordinarily resident in the area where they were resident immediately before the local authority began to provide or arrange care and support in any type of specified accommodation.
The consequence of this is that the local authority which first provided that care and support will remain responsible for meeting the person’s eligible needs, and responsibility does not transfer to the authority in whose area the accommodation is physically located. However, in circumstances where the person moves to accommodation in a different area of their own volition, without the local authority making the arrangements, they would be likely to acquire ordinary residence in the area of the authority where the new accommodation is situated.
The deeming rule does not apply where a person has chosen to arrange their own care in a type of specified accommodation in another area, and then later asks for local authority support.
Need should be judged to be ‘able to be met’ or of a kind that ‘can be met only’ through a specified type of accommodation where the local authority has made this decision following an assessment and a care and support planning process involving the person. Decisions on how needs are to be met, made in the latter process and recorded in the care and support plan, should evidence that needs can only be met in that manner. Where the outcome of the care planning process is a decision to meet needs in one of the specified types of accommodation and it is the local authority’s view it should be assumed that needs can only be met in that type of accommodation for the purposes of ‘deeming’ ordinary residence, this should be clearly recorded in the care and support plan. The local authority is not required to demonstrate that needs cannot be met by any other type of support. The local authority must have assessed those needs in order to make such a decision – the ‘deeming’ principle therefore does not apply to cases where a person arranges their own accommodation and the local authority does not meet their needs.
The first local authority’s responsibility will continue in this way for as long as the person’s eligible needs are met by a specified type of accommodation. This will include situations where the person moves between care and support provided in different specified types of accommodation in another (or more than one other) area. As an example, if the first authority arranges care and support in one type of accommodation in the area of the second authority (for example in a shared lives scheme or a care home) and the person’s needs change, leading to them moving into another type of accommodation remaining in the second authority’s area (for example a supported living scheme), the person would continue to be ordinarily resident in the area of the first authority, and that authority would remain responsible for the care and support. However, should the person’s needs no longer require the care and support to be provided in a specified type of accommodation, then it is likely that their ordinary residence will change, and the first local authority will no longer retain responsibility.
As part of their involvement in the planning process, where the local authority is arranging the person’s accommodation the person will also have a right to make a choice about their preferred accommodation (see Charging and Financial Assessment and Choice of Accommodation and Additional Payments). This right allows the person to make a choice about a particular individual provider, including where that provider is located. Provided that certain conditions are met, the local authority must arrange for the preferred accommodation.
The ordinary residence rules described above will apply when the person’s preferred accommodation is in the area of another local authority. The ordinary residence ‘deeming’ principle applies most commonly where the local authority provides or arranges care and support in the accommodation directly.
9.1 Direct payments
The principle also applies where a person takes a direct payment and arranges their own care (since the local authority is still meeting their needs).
In such cases, the individual has the choice over how their needs are met, and arranges their own care and support. If the care plan stipulates that person’s needs can be met only if the adult is living in one of the specified types of accommodation and the person chooses to arrange that accommodation in the area of a local authority which is not the one making the direct payments then the same principle would apply; the local authority which is meeting the person’s care and support needs by making direct payments would retain responsibility.
However, if the person chose accommodation that is outside what was specified in the care plan or of a type of accommodation not specified in the regulations, then the ‘deeming’ principle would not apply.
At present, direct payments may not be made to meet needs by the provision of long-term care and support in a care home. However, the individual may request a direct payment to meet needs for other types of accommodation specified in the regulations. Where someone chooses a type of supported living accommodation, the direct payment would be for the care but usually not the accommodation. Local authorities should therefore ensure that they have in place effective, proportionate processes for recording how the individual chooses to meet their needs (see Direct Payments).
If a local authority arranges care and support in a type of accommodation in another area, or becomes aware that an individual with a direct payment has done so themselves, the authority should inform the host authority, to ensure the host authority is aware of the person in their area. The first authority should ensure that satisfactory arrangements are made before the accommodation begins for any necessary support services which are provided locally, such as day care, and that clear agreements are in place for funding all aspects of the person’s care and support.
In practice, the first local authority may enter into agreements to allow the authority where the accommodation is located to carry out functions on its behalf. This may particularly be the case where the accommodation is located some distance away, and some functions can be performed more effectively locally. For example a carer may live in a different authority from the person he or she is caring for. Local authorities may make arrangements to reimburse to each other for any costs which occurred through such agreements.
There may be occasions where a provider chooses to change the type of care which it provides, for instance to de-register 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.
10. 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.
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.
11. Mental Health Aftercare
Under section 117 of the Mental Health Act 1983 (the 1983 Act), local authorities together with CCGs have a joint duty to arrange the provision of mental health after-care services for people who have been detained in hospital for treatment under certain sections of the 1983 Act. After-care 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 after-care 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.
12. Other Common Situations
12.1 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 (see Annex H: Ordinary Residence, Persons 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.
12.2 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.
Further scenarios which may occur are set out in Annex H, and may be used by local authorities to support cases where there may be uncertainty as to an individual’s ordinary residence.
12.3 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 (see Annex H Ordinary Residence, People who have Sufficient Funds to pay for their own Care and Accommodation).
13. 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.
The Care and Support (Disputes Between Local Authorities) Regulations 2014 set out the procedures local authorities must follow when disputes arise between local authorities regarding a person’s ordinary residence. When a dispute between two or more local authorities occurs, local authorities must take all reasonable steps to resolve the dispute between themselves.
It is critical that the person does not go without the care they need, during any dispute.
The local authority that is meeting the needs of the adult or the carer on the date that the dispute arises, must continue to do so until the dispute is resolved.
If no local authority is currently meeting the person’s needs, then the local authority where the person is living or is physically present must accept responsibility until the dispute is resolved.
The local authority which has accepted provisional responsibility is referred to as the ‘the lead authority’.
The lead authority must identify all the authorities involved in the dispute and co-ordinate an ongoing dialogue between all parties involved. The parties involved must provide the lead authority with contact details of a named person in relation to the dispute. The lead authority must be responsible for the co-ordination of any information that may be relevant to the dispute and keep all parties informed of any developments that may be relevant to the dispute. The lead authority must also keep the person, or their carer if appropriate, fully informed of dispute in question and of progress regarding any resolution.
If, having taken appropriate legal advice and considered the position, and followed the procedure set out in the disputes regulations, the authorities are still unable to resolve a particular dispute, they must apply for a determination to the Secretary of State or appointed person. Applications for determinations must be submitted by the lead authority before or by the end of a period of four months from the date when the dispute arose. The provisional acceptance of responsibility by the lead authority will not influence any determination made by the Secretary of State.
13.1 Process for seeking a determination
The regulations place a duty on the parties involved in the dispute to provide specified information to the Secretary of State or appointed person. The lead local authority must make a request in writing to the Secretary of State or appointed person, together with a statement of facts and other documentation. All correspondence between the local authorities must also be sent in when seeking a determination, including that between the local authority social work departments when disputing a person’s place of ordinary residence. The statement of facts must include certain specified information as set out in the regulations. Local authorities should endeavour to produce a statement of facts that is jointly agreed. If the parties cannot agree on particular information, they should make clear what information the parties say is agreed, what information the parties say is in dispute and, as regards the latter, what the parties’ respective versions of the facts are. Local authorities should ensure that all documents sent to the Secretary of State or appointed person are in an indexed paginated bundle. Copies of any further documents required will need to be added to the index for insertion into the bundle.
The Secretary of State or appointed person will not allow ordinary residence disputes to run on indefinitely once they have been referred for a determination. The Secretary of State – or appointed person – once satisfied that the parties have had adequate opportunity to make representations, will proceed to make a determination. Any local authority failing to have due regard to a determination by the Secretary of State or appointed person, would put itself at risk of a legal challenge by the resident or their representative or the other local authorities to the dispute.
Local authorities may wish to seek legal advice before making an application for a determination, although they are not required to do so. If legal advice is sought, local authorities may, in addition to the required documentation, provide a separate legal submission. Where legal submissions are included, these should be exchanged between the local authorities in dispute and evidence of this should be supplied to the Secretary of State.
If during a determination of the ordinary residence dispute by the Secretary of State or appointed person, a local authority in dispute is asked to provide further information to the Secretary of State or appointed person, that local authority must provide that information without delay.
If the local authorities involved in the dispute reach an agreement whilst the Secretary of State is considering the determination, they should notify the Department of Health and Social Care. Both parties must confirm that the dispute has been resolved after which the determination will be closed down.
If a determination by the Secretary of State or an appointed person subsequently finds another local authority to be the authority of ordinary residence, the lead local authority may recover costs from the authority which should have been providing the relevant care and support.
Regardless of when the Secretary of State is asked to make a determination, it will be made in accordance with the law that was in force at the relevant date, in respect of which ordinary residence falls to be determined. Therefore, where ordinary residence is to be determined in respect of a period which falls before 1st April 2015, then the determination will be made in accordance with the National Assistance Act 1948. If, in respect of a period on or after 1st April 2015, then the determination will be made in accordance with the Care Act. Any question as to a person’s ordinary residence arising under the National Assistance Act which is to be determined by the Secretary of State on or after 1 April 2015 is to be determined in accordance with the Care Act (disputes about ordinary residence) and the new dispute procedure under the Care Act is to be followed.
The Department of Health and Social Care makes available anonymised copies of determinations it has made. Each case must be considered in light of its own particular facts, but past determinations may provide local authorities with useful guidance when faced with similar circumstances.
14. Financial Adjustments between Local Authorities
Sometimes a local authority has been paying for a person’s care and support, but it later becomes apparent (for example as a result of an ordinary residence determination) that the person is in fact ordinarily resident elsewhere. In these circumstances the local authority which has been paying for that person’s care may reclaim the costs from the local authority where the person was ordinarily resident.
This can occur in cases where it is not clear initially where the person is ordinarily resident. In order to ensure that the individual does not experience any delay to their care due to uncertainty over their ordinary residence, local authorities should be able to recover any losses due to initial errors or delays in deciding where a person is ordinarily resident. This also extends to costs spent supporting the carer of the person whose ordinary residence was in dispute. It should be noted that only the costs of care can be recovered, not the local authority’s legal or social work costs.
15. Reconsidering Disputes
If further facts come to light after a determination has been made, local authorities may consider it appropriate for the Secretary of State or appointed person to reconsider the original determination. As a consequence of this, a different determination may be substituted. This may mean that payments made from one local authority to another as a consequence of the first determination will need to be repaid.
Any review of the determination must begin within three months of the date of the original determination. This is needed to ensure clarity and fairness in the process and minimise the amount of time taken for determinations to be made.