Tuesday, 9 October 2018

ADASS Guidance on Ordinary Residence

The Association of Directors of Adult Social Services (ADASS) has recently published its guidance on ordinary residence. As I pointed out in my blog post in 2014, the Care Act 2014 revised the Mental Health Act, principally with regard to S.117 aftercare, but also with regard to the concept of “ordinary residence”.

It could be very helpful for ADASS to issue this guidance, as its tends to be local authorities who get into expensive legal disputes with each other over responsibility for packages of care, and this may reduce the incidence of these disagreements.

The concept of ordinary residence is important, as it establishes which local authority is responsible for providing for the care needs of people identified by the Care Act as being eligible to have their needs met.

The guidance points out:

In the vast majority of cases it will be obvious where an individual is ordinarily resident – and consequently which local authority is responsible for meeting the eligible social care needs of that individual. The issue of where an individual is ordinarily resident will usually arise when a person is moving or has moved from one geographical area to another.

Since “ordinary residence” is not actually defined in the legislation, it is still necessary to rely on case law to clarify its meaning. It may not be as simple as being where someone is actually living at the time they become eligible for services, as other factors may intrude. What is the ordinary residence of someone who has a tenancy or owns a home in LA 1, but happens to be on holiday with relatives in LA 2?

The guidance considers at length two cases: the Shah case, relating to people with capacity, and the Cornwall Case, relating to people lacking mental capacity to make decisions about residence.

The Shah Case

The Shah case goes back to 1982. Lord Scarman said in this case:

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.

Length of residence is not necessarily a factor in deciding ordinary residence in this context: the Shah case concluded that someone must be living in a particular place for a “settled purpose as part of the regular order of his life for the time being, whether of short or long duration.”

The ADASS guidance states that:

Settled purpose can be established at the instant of an individual’s move to a new area, if that move is with the intention of remaining there permanently or for the foreseeable future. That is because the person will have a settled purpose from the moment they arrive.
However, if they are only temporarily away from their normal place of residence, then their permanent home will continue to be their ordinary residence for the purposes of the Care Act.

The Cornwall Case

The Cornwall case was a Supreme Court case from 2015, after the Care Act came into force.

This case concerned PH, a man born with severe physical and learning disabilities, who had been accommodated since the age of 4. He was with foster parents until he was 18, and then went into residential care. The question the Supreme Court had to answer was which LA was responsible for his care (under the Care Act)?

Was it Wiltshire, where he lived with his parents until he went to foster carers? Was it South Gloucestershire, where he lived with the foster carers? Or was it Cornwall, where his parents moved to in 1991? 

At the time of the decision, he was living in a fourth LA, Somerset, where he had been placed in residential care after leaving his foster carers. The issue was his ordinary residence prior to his placement in Somerset.

While the initial finding was that Cornwall was responsible, the Supreme Court considered that this was insupportable, and concluded that Wiltshire retained responsibility for funding, as they were responsible for the original placement.

The Supreme court concluded:

For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and “swings and roundabouts” may be unavoidable.

ADASS draws attention to the deeming provisions in S.39 Care Act 2014. This states that a LA “cannot ‘export’ its responsibilities under the Care Act by placing an individual in a different geographical area.” Certain types of accommodation, eg care homes, shared lives scheme accommodation or supported living accommodation, cannot be considered when determining someone’s ordinary residence.

The basic rule therefore is that a person “is ‘deemed’ or presumed to continue to be ordinarily resident in the area he was ordinarily resident in immediately prior to commencing living at the accommodation in question.”

The Care Act/Mental Health Act interface

Under S.117, the LA in which the patient was “ordinarily resident” immediately before being detained is responsible for aftercare. The Shah case applies in determining ordinary residence for patients detained under s.3 (and some Part III sections).

The ADASS guidance states:

It does not matter who is paying for care and support at the time of detention or which local authority employed any AMHP who might have been involved in the detention.

It goes on to say:

Where someone goes into hospital on a voluntary basis, they do not lose their residence. However, if during the voluntary admission the individual loses their previous accommodation, they no longer continue to be resident in that area. In such a case, if their presence in hospital is sufficiently settled they may acquire residence in hospital. If, having become resident as a voluntary patient in hospital, they are subsequently detained (for example) under section three, that will result in the authority responsible (for section 117 aftercare) being that where the hospital is situated, as that is where they will be resident.

This scenario consistent with the case law I discussed in this blog post.

I have only dipped into the full guidance in this post. It is to be hoped that the guidance will reduce the number of disputes between LA’s over their Care Act responsibilities and their responsibilities under S.117. I am certainly aware of cases where LAs continue to dispute their statutory responsibilities, often at the expense of the person whose needs have been assessed.

Unfortunately, while social care budgets continue to be squeezed and cut back to the bone, LAs are going to continue to fight to avoid the sometimes horrendously expensive care packages that the most vulnerable and disabled nevertheless continue to need.