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.

Section 117 Aftercare and the Meaning of “Residence”: Recent Case Law

On 22^nd May 2014 the Court of Appeal heard the appeal by Wiltshire Council ([2014] EWCA Civ 712), who were in dispute with Hertfordshire County Council over who was responsible for Sec.117 aftercare for SQ.

It’s sometimes astonishing to see the lengths (and legal expense) that local authorities go to in order to avoid accepting responsibility for Sec.117 aftercare. But then providing aftercare can be a very expensive business.

It’s not unknown for local authorities to place troublesome Sec.3 patients in care homes in neighbouring authorities under Sec.117 aftercare, in the knowledge that the placement is of dubious suitability and may quite possibly break down. This then precipitates an assessment under the Mental Health Act conducted by the local AMHP service and a fresh detention under Sec.3 in the new local authority’s area – who then have to take responsibility for future aftercare.

I know this sort of reprehensible behaviour is hard to believe, but it does happen from time to time.

Anyway, to get back to Wiltshire v. Hertfordshire. SQ was born and lived in Wiltshire until 1995. He had been an adult mental health service user since 1989. In 1995, a court made him subject to Sec.37 with restrictions under Sec.41. He remained detained under Sec.37/41 in various hospitals outside Wiltshire until 2009, when he was discharged with a condition that he reside in a staffed hostel in Hertfordshire.

Two years later, in 2011, he was recalled to a hospital in Hertfordshire. On 20^th February 2014 he was again conditionally discharged to the same accommodation in Hertfordshire.
Following his recall, Wiltshire attempted to transfer Sec.117 aftercare responsibility to Hertfordshire. Hertfordshire refused to accept this.

Wiltshire requested judicial review of this decision, which was rejected twice. They then appealed to the Court of Appeal.

People who make a study of these cases will be aware of the intricacies of the meaning of the word “residence”. Local authorities, used to, and strangely often still do, try to apply the term “ordinary residence” to the duty of provide aftercare under Sec.117.

In fact, “ordinary residence” has nothing to do with the Mental Health Act at all. It is a definition which only has meaning under the National Assistance Act 1948.

There’s a rather useful Department of Health Publication called Ordinary Residence: Guidance onthe identification of the ordinary residence of people in need of communitycare services, England. This document states:

“Responsibility for the provision of accommodation and community care services under sections 21 and 29 of the 1948 Act is largely based on the concept of “ordinary residence”. However, there is no definition of “ordinary residence” in the 1948 Act. Therefore, the term should be given its ordinary and natural meaning subject to any interpretation by the courts.”

 

It goes on to say that ordinary residence “is the place a person has voluntarily adopted for a settled purpose for short or long duration. 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.”

The document goes on to point out that with Sec.117 the duty falls on the authorities “for the area in which the person concerned is resident or to which the person is sent on discharge by the hospital in which the person was detained.” It stresses (using bold type) that: “the term “resident” in the 1983 Act is not the same as “ordinarily resident” in the 1948 Act and therefore the deeming provisions (and other rules about ordinary residence explained in this guidance) do not apply.”

So what of this recent judgment? This case shows Wiltshire trying desperately to extricate themselves from their Sec.117 duties.

Wiltshire was seeking decisions on “whether the recall to hospital in 2011 resulted in SQ being owed a fresh duty under section 117 on leaving hospital in 2014; and secondly, if so, whether SQ was for the purposes of Section 117 “resident” in Hertfordshire’s area as at the date of the recall in 2011.”

While there was “no dispute that, when SQ was conditionally discharged from hospital for the first time on 2nd March 2009, he was “resident” in Wiltshire for section 117 purposes”, Wiltshire was keen to establish that his prolonged residence in the accommodation in Hertfordshire meant that he was now “resident” within the meaning of the MHA in Hertfordshire.

The Court of Appeal gave this short shrift. It observed that “Wiltshire did not suddenly cease to be the local services authority in whose area SQ was “resident” for section 117 purposes because on discharge he was sent to an address in Hertfordshire”.

They also dismissed the contention that there were two distinct periods of detention, on the basis that, unlike a Sec.3, where someone can be discharged from the order, then detained again following a fresh assessment, the recall of a conditionally discharged patient continues to arise from the original court order, and “the chain of causation has never been broken.”

The judgment concludes: “I consider it clear that where a person has been made subject to a hospital order with restrictions, then conditionally discharged, then recalled to hospital, and then conditionally discharged for a second time, for the purposes of s 117(3) of the Act he is still to be treated as “resident in the area” of the same local authority as that in which he lived before the original hospital order was made. This makes it unnecessary to consider whether or not a fresh duty to provide after-care services arose on SQ’s second discharge earlier this year. Whether the duty is a fresh one or a continuing one, on the facts of this case it is Wiltshire’s duty.”

Using the same argument, these residence issues could equally apply to a patient made subject to Supervised Community Treatment following detention under Sec.3.

 

What is clear from this case is that, despite a growing body of case law establishing the meaning of “residence” for Sec.117 aftercare, local authorities are still trying to evade their duties.