Ordinary residence guide: Determining local authority responsibilities under the Care Act and the Mental Health Act

This guide is aimed at supporting local authorities and other organisations with the task of determining ordinary residence and applying the concepts of ordinary residence – in particular, recognising that many of the people supported have experienced complex care and support arrangements, over a number of years, in different geographical areas and where guidance and policy may have changed during this time.

These complexities can be challenging for council staff and others in then determining the financial responsibilities for individuals, in particular on leaving inpatient settings where they may have been for significant lengths of time. Taking into account the experiences of and issues being raised by local authorities and those with responsibilities in this area, this guide has been developed with the aim of supporting partners to minimise disputes and support collaborative local resolution.

The wellbeing of individuals is paramount. Organisations should work together cooperatively and proactively, seeking to ensure that people moving between areas are provided with timely and effective support; they should ensure they are meeting the needs of the person and continuing with plans for individuals, regardless of uncertainties or disputes about funding arrangements. In these cases, the organisation currently meeting their needs should continue to do so on a ‘without prejudice’ basis, until the issue is resolved.

The guide applies to all adults whose care is commissioned in an area that is different from where they hold ordinary residence, including those whose services are governed by the Mental Health Act. It provides general guidance that does not constitute advice concerning any specific case and must not be used as a substitute for obtaining legal advice based on the individual circumstances of a case. 

About the concept of ordinary residence

Where an individual is ‘ordinarily resident’ determines, which local authority is required to meet their eligible care and support needs under the Care Act. A local authority’s duty to meet eligible needs also applies to those who are present in the area but are of no settled residence^[1].

The idea of ordinary residence is not new or unique to the Care Act, nor indeed its predecessor the National Assistance Act 1948. The concept is not defined in the Care Act, although chapter 19 and annex H of the Care and Support Statutory Guidance 2014 (‘the statutory guidance’) are dedicated to the subject and there is a significant body of legal case law and Secretary of State determinations that are relevant to this issue.

In most 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.

Where there is a dispute about which authority is responsible – due to disagreement over where the individual is ordinarily resident – the end point is resolution by the Secretary of State for Health and Social Care^[2]. Regulations ^[3] set out detailed guidance of the steps that a local authority must take in order to make such a referral. However, a formal referral to the Secretary of State should be the last resort.

Local authorities should make all efforts to resolve disputes locally wherever possible, including. an early referral to in-house legal teams where differences of approach are identified.

The question of ordinary residence should be determined after a needs assessment has identified that the person has eligible needs under the Care Act^[4]. Any disputes about ordinary residence must not adversely affect the meeting of the needs identified^[5]. Therefore, one authority must accept responsibility on a provisional basis.
 

This will be whichever authority is currently meeting the needs, or if none, where the individual is currently living, or if that is not clear where the individual is present^[6]. See section four of this guide for more detail on disputes.

‘Ordinary residence’ is not defined within the legislation; therefore the words must be given their natural meaning within the legal context in which they appear.

The purpose of establishing ordinary residence is, at its root, about allocating legal and financial responsibility for an individual to a particular local authority. The development of the relevant legislation and any interpretation by the courts
of that legislation support the basic principle that one local authority should not be able to ‘export’ responsibility for an individual by placing them in a different geographical or local authority area.

Establishing ordinary residence for people with capacity

The statutory guidance advises that: “The concept of ordinary residence involves questions of both fact and degree. Factors such as time, intentions and continuity (each of which may be given different weight according to the context) have to be taken into account” ^[7]. It will be seen that the range and importance of relevant factors can vary hugely in each individual case.

The approach to determining where an individual is ordinarily resident under the Care Act comes from the case of Shah^[8], a case relating to entitlement to student grants. This approach applies to those people who have the mental capacity to decide where they want to live. There is a different approach for people who do not have the capacity to do so (see page 9 below).

In the case of Shah, Lord Scarman said:

“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.” - R;v;Barnet;LBC;ex;Shah;[1983] 2 AC 309
 

Thus, determinations around ordinary residence often apply what is known as the ‘Shah test’ based on the origins of this case. There are both physical and mental aspects to the test which can essentially be reduced down to three elements, as follows.

Abode in a particular place

This is the physical element and is usually relatively straightforward to ascertain. A person’s abode is simply where they live. The question ‘Where do they normally eat and sleep?’ will usually provide the answer to this element. This could be anything from a barn^[9] to a house or flat, a hostel or residential accommodation. This is, of course, not an exhaustive list.

For the purposes of allocating responsibility for meeting eligible needs a person cannot be ordinarily resident in more than one place, so if an individual splits their time between two properties it would be necessary to look at all the facts to determine which one of those there is a stronger link to. Elements such as time spent at each address, GP registration, inclusion on the electoral register and looking at the extent of the individual’s community ties in each area can assist in determining this.

The requirement of an element of physical presence means that a person cannot be ordinarily resident in a place where he does not yet live but which he intends to occupy at some stage in the future. Equally, simple ownership of property that is not occupied by that person has no bearing on ordinary residence.

Settled purpose

The person must be at their abode for a “settled purpose as part of the regular order of his life for the time being, whether of short or long duration.”

The need for a settled purpose is one of the two mental elements to the Shah test.

It is important to apply the ‘settled purpose’ test without artificial limitations in terms of duration of stay, as it is clear that the settled purpose – in the context of establishing ordinary residence – can be “of short or long duration”. It is simply a question of whether the settled purpose is part of the regular order of the individual’s life “for the time being”.

From this perspective, 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.

Thus, the physical presence that is required to establish settled purpose does not have to be of any specific length of time.

In addition to physical presence, it is necessary that there is a sufficient degree of continuity to be described as settled, whether for a long or short duration.

Examples given by the court in Shah ^[12] of valid reasons for a ‘time-limited’ choice of abode that could indicate a settled purpose are education, business or professional, employment, health or family.

There is an important difference in approach where someone has made a clear decision to permanently move away from an area and the situation when someone is temporarily away from their place of residence when the need for support under the Care Act arises.

If they are temporarily away, they will remain ordinarily resident in their own/originating area rather than acquiring ordinary residence in the area where they are staying. Therefore, an individual can be physically present in one area but not ordinarily resident there.

The approach to temporary presence in a particular place will vary depending on the individual circumstances. Temporary ‘absence’ from a place, for example a holiday or a stay in hospital, will not displace an individual’s ordinary residence^[13]. However, temporary ‘presence’ somewhere can – in limited situations, provided they have definitely moved away from another area – amount to ordinary residence.

The point to remember is that Shah established that the settled purpose could be of long or short duration, so the fact that an individual is only temporarily at an address is not a bar to them being ordinarily resident there.

If the purpose of the presence is not settled, the outcome will be that they are of no settled residence. In such a case, the duty to meet eligible needs would lie with the authority in whose area they are physically present.

It is of note that, prior to the Care Act, those of no settled residence had more restricted rights under the community care legislation and therefore a finding of no settled residence was undesirable and only ever concluded as a last resort. Under the Care Act, it is now less problematic for an individual to have no settled residence (since he or she will retain a right to care and support in any event) but the statutory guidance confirms that it will only happen in rare circumstances.

In practice, if there are live issues around the identification of a settled purpose, this will require a close examination of all the facts and often historical background. However, the likelihood will usually be that the greater the length of time that an individual has spent in a particular place, the easier it will be to demonstrate a settled purpose as a result of the increased level of continuity.

In summary then, a settled purpose can be determined from looking at all the circumstances. Whilst intention without physical presence will not result in ordinary residence, presence coupled with a clearly expressed intention will make it easier to demonstrate a settled purpose.

Voluntary adoption of the abode

This is the second mental element of the test. If a person’s abode has been enforced on them, for example as a result of a sentence of imprisonment, it has not been voluntarily adopted and the individual’s presence there will not amount to ordinary residence.

On the other hand, the fact that an individual may not like where he is, or would prefer to be somewhere else, does not prevent that place from being where he is ordinarily resident for the time that he is there. 

“If a person, having no other accommodation takes his few belongings and moves to a barn for a period to work on a farm, that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is ‘shelter’ but it is also where he resides.” Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57. Note this case was about ‘normal’ residence in a housing case, but the principle applies equally to the concept of ‘ordinary residence^[14].

If an individual with capacity to make the decision goes along with the plans of others they will have voluntarily adopted the abode, even if it is the only place that was offered to the individual during the planning process^[15].

However, if the place in question is one of a number of specified types of accommodation, the deeming provisions will apply. This is explored in more detail in Reaching an answer in accordance with the Cornwall and Worcestershire cases;

Establishing ordinary residence for people who lack capacity
 

As previously noted, a different approach must be used to establish ordinary residence under the Care Act for those individuals who do not have the mental capacity to voluntarily adopt a place of abode. 

It is important to note that all issues relating to mental capacity should be decided in line with the provisions of the Mental Capacity Act 2005. Under the legislation it must be assumed that adults have the capacity to make their own decisions – including in relation to their accommodation and care – unless it is established to the contrary. 

For the purposes of ordinary residence, the relevant decision is about where to live. Where a person is found to lack capacity for a specific decision, such as where to live, any decision must be made in the person’s best interests – and involving the person as much as possible.

If, in line with those requirements, a person does not have capacity, then that person’s ordinary residence should be established by reference to two Supreme Court cases: the Cornwall case^[16] and the Worcestershire case^[17].

The Cornwall case

The Supreme Court in the Cornwall case clarified the application of what used to be known as the ‘Vale approach’, following on from the 1985 court case of the same name^[18]. This 1985 case had been interpreted to advocate two alternative approaches, which will be referred to as ‘Vale 1’ and ‘Vale 2’.

In short, ‘Vale 1’ was thought to apply where a person “is so mentally handicapped as to be totally dependent upon a parent or guardian”. In those circumstances, the individual’s ordinary residence “is that of her parents because it is her ‘base’.” If ‘Vale 1’ was not suitable, the ‘Vale 2’ approach would be used, which involved simply using a modified version of the Shah test (set out above).

The Supreme Court in the Cornwall case moved away from the Vale approach. The court observed (with hindsight) that it may have been unhelpful for the court in the Vale case to merge the Shah test with the idea of a ‘base’. In addition, the Supreme Court went on to clarify that the two approaches in Vale were not separate legal tests: “Rather they were complementary, common-sense approaches to the application of the Shah test to a person unable to make decisions for herself; that is, to the single question whether her period of actual residence with her parents was sufficiently settled to amount to ordinary residence^[19].

In other words, the Cornwall case suggests that the correct approach to establishing ordinary residence for people who lack capacity is to apply the Shah test but without the subjective elements, which involves asking “whether the past period of actual residence under scrutiny was sufficiently settled to amount to ordinary residence on the part of the person concerned."^[20]

The Worcestershire case

The Worcestershire case should also be noted. In that case, the Supreme Court said that, where an individual lacked mental capacity, the Shah test required adaptation, and that “the mental aspects of the test must be supplied by considering the state of mind of whoever has the power to make relevant decisions on behalf of the person concerned.”^[21]

In other words, the Supreme Court suggested that the three elements of the Shah test – the ‘abode in a particular place’, ‘settled purpose’ and ‘voluntary adoption’ – still apply, but that the latter two mental elements should be judged by reference to the person making the decision on behalf of the individual without capacity.

Reaching an answer in accordance with the Cornwall and Worcestershire cases

The Supreme Court has therefore suggested two slightly different formulations for establishing the ordinary residence of those without mental capacity. In practice, the two formulations will usually produce the same answer: an individual’s residence somewhere is unlikely in all the circumstances to be sufficiently settled to constitute ordinary residence (the Cornwall formulation) if that residence has not been voluntarily adopted for settled purposes by the person making the decision for the relevant individual (the Worcestershire formulation).

If the two tests do not produce the same outcome, the outcome produced from application of the Cornwall formulation should generally be preferred, since it is that formulation which is currently found in the statutory guidance^[22], and the comments in the Worcestershire case were probably ‘obiter dicta’ (not strictly binding precedent).

When applying the Supreme Court tests, practitioners should avoid focusing only on whether there is a tenancy agreement, or whether the individual had the capacity to sign one. That issue will not usually be determinative, since the legality of any tenancy agreement does not determine where someone is in fact residing at any particular time.

The Care Act deeming provisions

As noted above, in the case of Shah, the definition of ordinarily resident has been described as referring to someone’s ‘abode’ which they have ‘voluntarily adopted’ for ‘settled purposes’. 

However, that basic picture is subject to the deeming provisions in section 39 of the Care Act 2014. Those provisions ensure that, in specific circumstances, an individual will not be considered ordinarily resident in an area by reference to the Shah test but will be deemed to be ordinarily resident elsewhere. 

There are three different deeming provisions in section 39, which relate respectively to ‘specified accommodation’, NHS accommodation, and section 117 aftercare accommodation.

The specified accommodation deeming provision

The first deeming provision, in section 39(1) of the Act, requires that certain types of accommodation (known as ‘specified accommodation’) be excluded from consideration when working out where someone is ordinarily resident. What that means in practical terms is that a person is ‘deemed’ or presumed to continue to be ordinarily resident in the area he or she was ordinarily resident in immediately prior to commencing living at the accommodation in question.

The deeming provision is designed to inhibit the ability of local authorities to avoid their responsibilities under the Care Act by placing an individual in a different geographical area. Even if a local authority makes arrangements for an individual to be accommodated in a different area – for example to place them near family or because there are no suitable local placements available – the deeming provision has the effect that financial responsibility for providing care and support to the individual will remain with the placing authority.

Section 39(1) only applies to ‘specified accommodation’^[23], namely:

• care home accommodation
• shared lives scheme accommodation
• supported living accommodation.

In simple terms then, if local authority A places an individual in a care home, shared lives scheme accommodation or supported living accommodation which is located within the area of local authority B, the responsibility for meeting eligible Care Act needs remains with local authority A – even though on a strict application of the Shah test, local authority B may have been regarded as being responsible. 

In this example, the individual is living in area B but is deemed for fiscal and administrative purposes as ordinarily resident in area A.

See Appendix A for more detailed descriptions of the three types of specified accommodation detailed above.

Restrictions on the operation of the specified accommodation deeming provision

The deeming provision for specified accommodation in section 39(1) of the Care Act only applies “where the adult has needs for care and support which can be met only” if the individual is living in a specified type of accommodation.

This will usually be determined by the assessment and a care planning process, which should involve the individual and their family (where relevant) and would include them exercising a choice as to the location of their preferred accommodation pursuant to the Choice of Accommodation Regulations. The statutory guidance advises that where the outcome of the care planning process is a decision to meet needs in one of the specified types of accommodation, it should be assumed (in the absence of any information to the contrary), that needs can only be met in that type of accommodation^[24].

If a local authority takes the view that needs can be met in other forms of accommodation as well (which may or may not be specified accommodation) then it should state this in any care planning documentation. 

An individual who arranges their own support as a self-funder (even in specified accommodation) will usually not fall within the deeming provision. See Appendix B for more information on how the deeming provisions apply to self-funders.

The specified accommodation deeming provision applies to people whose needs are met by the local authority through the provision of a direct payment, provided that the accommodation accords with that specified in the care plan. 

This arises, for example, in relation to supported living arrangements, where the direct payment may cover the care and support required, but not the cost of the accommodation. Direct payments are not currently available for long-term residential care accommodation^[25].

A local authority that fails to meet needs under the Care Act is unlikely to be able to rely on its failure to do so to avoid the responsibility that arises as a result of the deeming provision^[26]. In other words, if (at a particular date) specified accommodation should have been provided by a local authority, then the situation may be determined as if the deeming provision had applied, even if the local authority failed to discharge its duty and the specified accommodation triggering the deeming provision was not actually provided. 

This is an application of a rule, sometimes referred to as the ‘Greenwich’ rule; from the name of the case which established this principle.

The operation of the specified accommodation deeming provision is also restricted by transitional arrangements limiting its application in certain (now historic) cases. In particular, the specified accommodation deeming provision does not apply to individuals who were already resident in shared lives or supported living accommodation before 31 March 2015^[27].

The NHS accommodation deeming provision

A further deeming provision in the Care Act applies to exclude NHS accommodation (for example hospitals) from considerations of ordinary residence^[28]. Under that provision, an individual who is being provided with NHS accommodation is deemed to continue to be ordinarily resident in the area he or she was ordinarily resident in immediately prior to commencing residing at the NHS accommodation in question.

For the purposes of this deeming provision, ‘NHS accommodation’ is broadly defined as any accommodation under the National Health Services Act 2006. That includes hospital accommodation. It also includes other accommodation that is funded by the NHS, for example when an individual is in receipt of NHS continuing healthcare (CHC) funding within a care home setting.

When a person is residing in NHS accommodation, they are treated as ordinarily resident in the area where they were residing in before they went into that accommodation, for the purposes of responsibility under the Care Act.

The deeming provision relates to NHS accommodation specifically, rather than to NHS funding more generally. As such, the deeming provision will not apply to NHS-funded individuals where the accommodation is not funded by the NHS. If the accommodation is instead funded by a local authority under the Care Act, then (assuming the requirements are met) the specified accommodation deeming provision should apply instead of the NHS accommodation deeming provision.

As with the specified accommodation deeming provision, the NHS accommodation deeming provision is also subject to transitional arrangements. That is because, while hospital accommodation has been included in adult social care deeming provisions since 1990, non-hospital NHS accommodation has only been introduced into the deeming provision more recently. Therefore, the transitional arrangements provide that the NHS accommodation deeming provision does not apply to anyone who has remained in non-hospital NHS accommodation from prior to 19 April 2010 onwards^[29].

Section 117 accommodation

The third deeming provision in the Care Act relates to someone who is provided with accommodation as part of aftercare services under section 117 of the Mental Health Act 1983. For the purposes of determining local authority responsibilities to meet needs under the Care Act, such a person is deemed to be ordinarily resident in the area of the local authority which has the duty to provide section 117 aftercare^[30].

The reason for this deeming provision is that (as considered in more detail in the next section) ordinary residence for the purposes of section 117 of the Mental Health Act and ordinary residence for the purposes of the Care Act are not subject to exactly the same rules, and therefore (absent this deeming provision) situations could arise where an individual is ordinarily resident in a different area under each Act^[31]. This deeming provision avoids such a result.

The first section of this guide has looked at local authority responsibilities relating to ordinary residence under the Care Act.

This section covers local authority responsibilities specifically relating to the discharge of individuals from hospital, both under the Care Act, and under the Mental Health Act in cases where section 117 aftercare arrangements apply.

In relation to determining responsibilities under the Mental Health Act, the deeming provisions set out in the Care Act do not apply.

Different rules apply to determine local authority responsibility depending on which statutory scheme applies, in other words, the Care Act or the Mental Health Act/section 117. This can cause confusion. Therefore, it is important to be clear about which statutory regime applies.

Regardless of which statutory scheme applies, the underlying policy position in relation to hospital discharges and delays is that no one should remain in hospital longer than necessary; “services should seek to minimise patients’ length of stay.”^[32]

Hospital discharges (not involving section 117 aftercare)

Acute hospitals

Until 2022, where it was not likely to be safe to discharge an individual unless arrangements for meeting their care and support needs were in place, the NHS body was required to notify the local authority in whose area the patient was ordinarily resident by using an ‘assessment notice’. That triggered a duty on the local authority to assess the individual for care and support needs before the individual was discharged.

That system has now been repealed^[33]. Instead, local NHS bodies and local authorities (together, ‘local areas’) are now required to cooperate and to adopt an appropriate local discharge process, and there is also now a greater focus on the so-called ‘Home First / discharge to assess’ approach^[34].

The change to the discharge process has not affected the basis of local authority responsibility, which is still determined by reference to the area where the relevant individual is ordinarily resident. Because of the deeming provision under the Care Act excluding any period of time spent in hospital, this will be the area where the patient was ordinarily resident on admission to hospital, even if the individual’s care and support arrangement/accommodation is no longer available. In simple terms then, if an individual is ordinarily resident in area A, and then admitted to a hospital, on discharge from hospital the local authority in area A has the duty to assess for and meet eligible care and support needs under the Care Act. 

The change to the discharge process has however changed the way in which ordinary residence issues arise. Under the previous system, the NHS body would make a judgement as to ordinary residence when sending the assessment notice, and the recipient local authority could then dispute the notice on the basis that the individual was not ordinarily resident in its area. Since the new system instead relies on locally agreed discharge processes, it is for local areas to determine the process for making decisions as to the ordinary residence of individuals being discharged, and for local areas to adopt processes for handling any disputes. However, any processes adopted should ensure that, where there is disagreement as to which authority is responsible, the care planning process goes ahead and the individual’s needs are met on a ‘without prejudice’ basis until any dispute is resolved. 

Continuing healthcare (CHC)

Where an individual is being discharged from hospital, potential eligibility for NHS continuing healthcare (CHC) ^[35] must always be considered. If there may be a need for CHC, the individual should be screened, through completion of a CHC checklist. A positive checklist will trigger an entitlement to a full CHC assessment.

The CHC framework states that the right time and place for a CHC assessment will usually be after a person has been discharged from hospital and had a period of recovery^[36]. As such, many individuals will be discharged before CHC screening, for example into a previous care and support placement, or into an interim NHS-funded placement. The CHC framework requires the NHS and local authorities to cooperate and have appropriate systems in place to covering the different possible scenarios. Where a local authority provides care on discharge to a person who is then found to be eligible for CHC, the local authority can seek reimbursement of the costs from the NHS^[37].

The local authority which would attend the multi-disciplinary CHC assessment and meet ongoing needs in the event of a not-eligible outcome would be the local authority where the individual was ordinarily resident at the point of admission to hospital.

Section 117 aftercare (Mental Health Act)

Different rules apply for determining which local authority is responsible for a person’s care and support, depending on whether that care and support is provided under the Care Act or under section 117 of the Mental Health Act.

Section 117 of the Mental Health Act imposes a joint duty on integrated care boards (ICBs) (or local health boards in Wales) and local authorities to provide or arrange for the provision of aftercare services for individuals who have been detained under certain sections of the Mental Health Act that deal with compulsory treatment, and who then cease to be detained and subsequently leave hospital. The Act does not provide guidance on the apportionment of responsibility across health and social care partners, but local partner organisations are expected to have local policies in place clarifying respective section 117 responsibilities^[38].

The provisions of the Mental Health Act which trigger section 117 aftercare duties are sections 3 (compulsory admission for treatment), 37 (court order for hospital admission or guardianship), 45a (higher court order for hospital admission), 47 (removal to hospital of person serving sentence of imprisonment) and 48 (removal to hospital of other prisoners in urgent need).

The duty to provide section 117 aftercare applies when the relevant person ceases to be detained, and the local authority and relevant health body assess that the individual has aftercare needs. It does not arise where the person is granted only a temporary leave of absence from their placement^[39]. But it can apply to a person discharged onto a community treatment order, a restricted patient on a conditional discharge, or a person who remains in hospital for a period of time on a voluntary basis having been discharged from the above outlined sections.

‘Aftercare services’ covers both health and care and support needs, and are defined as having a dual purpose, namely, to meet a need arising from or related to the person’s mental disorder, and to reduce the risk of a deterioration of the person’s mental condition (and accordingly re-admission to hospital for treatment of that mental disorder)^[40].

The duty to provide aftercare services continues until the responsible aftercare organisations are satisfied that the person no longer needs any aftercare services for their mental disorder, or until the person is detained again under one of the provisions which trigger the operation of section 117^[41].

Determining the local authority responsible for aftercare provision under section 117 of the Mental Health Act 1985

The section 117 duty falls to the local authority for the area in which the patient was ordinarily resident immediately before being detained. As has already been stated, it was confirmed in the Worcestershire case that the deeming provisions within the Care Act do not apply to aftercare responsibility under the Mental Health Act. As such, the approach to be taken is simply to follow the three-stage Shah approach to identify where someone is ordinarily resident, modified where necessary for people who do not have the mental capacity to decide where they reside.

This is not determined by which public body is paying for care and support at the time of detention, or which local authority employed any approved mental health professional (AMHP) who might have been involved in the detention.

Section 117 provides that, if it cannot be established where the individual was “ordinarily resident” “immediately before being detained” (the primary test under s 117(3)(a)), then the duty to provide aftercare will be on the local authority for the area where that person “is resident” or where the person is discharged following their detention (an alternative test under s 117(3)(c))^[42].

Since the two tests are alternatives, they should be mutually exclusive. However, a question arises as to what the difference is between ‘the area where a person was ordinarily resident immediately before being detained’ (s 117(3)(a)) and ‘the area where a person is resident’ (the first limb of s 117(3)(c)). There are two possible answers to that question. There are difficulties with both options.

The first possible answer is that there is a difference between ‘ordinarily resident’ (s 117(3)(a)) and ‘resident’ (s 117(3)(c)). However, there is some authority suggesting that ‘ordinary residence’ and ‘residence’ should not have substantially different meanings^[43].

The second possible answer is that the tests relate to different points in time: s 117(3)(a) refers to the period immediately before detention, whereas s 117(3)(c) uses the present tense, and so could mean the period after detention. However, the Court of Appeal has previously held that the wording now contained in s 117(3)(c) refers to the period before the person is detained^[44].

Therefore, it may be that there is no substantial difference in meaning between the tests under s 117(3)(a) (ordinary residence immediately before detention) and the first limb of s 117(3)(c) (residence).

If residence (ordinary or otherwise) cannot be established, the outcome of the enquiry will be that the individual has no settled residence. In such a case, the duty to share jointly with a health body in the provision of aftercare services will fall to the local authority to which a person is sent on discharge, under the second part of s 117(3)(c).

Generally under the Shah test, temporary stays (for example a voluntary stay in a hospital) do not affect an individual’s ordinary residence[^[45]. However, in one case, a voluntary patient at a hospital who lost access to their previous accommodation during their hospital stay and then was detained under the Mental Health Act, was considered by the Court of Appeal to have acquired residence in the hospital for the purposes of section 117^46.

Therefore, where a person has been in hospital voluntarily immediately prior to being detained, a detailed analysis of all the circumstances will be required to determine where, if anywhere, a person was resident at the point of detention. In such a case it will be sensible to seek early legal advice to enable the dispute to be quickly resolved.

Where any dispute arises over aftercare responsibility, one authority would have to take responsibility for care planning and provision on a ‘without prejudice’ basis, and if no services are currently being provided that will be the authority where the person is physically present. If there is disagreement as to aftercare responsibility this is likely to become apparent at the discharge planning stage, when the individual is still in hospital. Therefore it is possible that the local authority in whose area the hospital is situated will need to accept provisional responsibility, even if there are no other connections to that area.

Needs that are not part of the section 117 aftercare plan 

In relation to any additional care and support needs that an individual may have (which are not part of their section 117 aftercare plan), section 39(4) of the Care Act provides that where an individual is being provided with accommodation, they are treated as being ordinarily resident, for the purposes of the Care Act, in the area of the local authority which has the duty to provide aftercare. So, the same local authority will be responsible. 

If this deeming provision did not exist, it could result in different authorities meeting different kinds of needs, which could cause complexities in the delivery and monitoring of the individual’s care and support package. If the person is not being provided with accommodation as part of their section 117 aftercare, the usual rules under the Care Act apply. 

If there are additional health needs, the individual in receipt of aftercare may also have need for NHS funding for those health needs not related to their mental health.

Transitions from children to adult social care – a new deeming provision?

On page nine, we considered the Cornwall case in the context of the issue of mental capacity and how it affects the evaluation of ordinary residence. The case was also relevant in setting out a new approach which applies an implied deeming provision to cases which involve a transition from children to adult social care.

Both the Children Act 1989 and the Care Act 2014 contain deeming provisions that ensure that an individual placed out of area by a local authority retains his or her ordinary residence in the originating local authority’s area. However, neither deeming provision strictly covers individuals transferring from children to adult social care.

Under the previous interpretation of the law in such cases, there was a presumption that a child placed out of area who then required assistance under the adult legislation remained ordinarily resident in the ‘originating’ local authority’s area. However, it was possible for that presumption to be rebutted in some cases. The Supreme Court in the Cornwall case effectively transformed that rebuttable presumption into a firmer rule. It declared 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”a href="#ftn47">^[47].On that basis, the court held that ordinary residence is unaffected by a transition from children’ to adult social care, and that a child deemed to be ordinarily resident in an originating local authority’s area will continue to be ordinarily resident there when they become an adult.

People of no settled residence

The courts’ approach in the past was that it was undesirable for a finding of no settled residence and it should only be done as a last resort. This was because of the restricted rights enjoyed by those of no settled residence. However, the finding of no settled residence no longer results in limited rights, so it may be that this outcome becomes more common in the future.

Prisoners

The local authority responsible for meeting the current needs of prisoners under the Care Act is the one in which the prison is situated^[48]. For people leaving prison, the starting point is a presumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence^[49]. However, the presumption can be rebutted – for example by the wishes of the individual to move elsewhere or restrictions imposed on where they may live. 

Urgent need

The Care Act includes a power to provide for those in urgent need who are ordinarily resident in another area^[50]. Annex H of the statutory guidance provides guidance and scenarios where this might arise.

Safeguarding enquiry

The safeguarding enquiry duty on the local authority in section 42 of the Care Act arises in relation to adults in its area who may be experiencing or at risk of abuse or neglect, regardless of whether or not they are ordinarily resident there.

Deprivation of Liberty Safeguards

In relation to individuals without capacity, where a deprivation of liberty is likely to occur, the managing authority of the care home or hospital must request a standard authorisation for the deprivation of liberty from a supervisory body, namely a local authority. The supervisory body will be the local authority in whose area the individual is ordinarily resident, even if the person has been placed by the local authority or the integrated care system in a care home in a different area.

Where the individual is self-funding and has acquired ordinary residence in the area where the care home is situated, that authority will be the supervisory body. 

Where the individual is of no settled residence at the time of the authorisation, the local authority in whose area the care home or hospital is situated will be the supervisory body.

Annex H of the statutory guidance, in particular paragraphs 51 to 63, give additional guidance as to the approach to be taken.

Disputes relating to the supervisory body will be determined by the Secretary of State under the Mental Capacity Act.

Any dispute about where an adult is ordinarily resident for the purposes of part one of the Care Act, if it cannot be resolved locally, is to be determined by the Secretary of State or their appointed representative.

Whenever a dispute arises over where an individual is ordinarily resident, local authorities should do everything they can to resolve the matter internally and without delay. A referral to the Secretary of State should only be made if efforts to resolve the matter locally have been unsuccessful and should be made within four months of the dispute arising. It is a serious step which should not be taken without seeking legal advice. Appendix C sets out the steps that need to be taken if a formal referral is made.

Early identification of any potential dispute is important. It is vital that all parties to the potential dispute engage in a meaningful and ongoing dialogue that genuinely attempts to identify and quickly resolve the real issues between the authorities involved.

It is also of fundamental importance that one authority accepts provisional responsibility wherever there is a dispute, so that the assessment, care planning and implementation stages are not delayed. The individual should remain at the centre of the process and not experience any delays in the provision of care.  

It should be noted that the right to make a choice about preferred accommodation also applies to supported living, which has a wide definition, and shared lives. Therefore an individual exercising these choices will result in a local authority retaining responsibility for meeting an individual’s eligible needs in a broad range of situations.

Shared lives accommodation

This is accommodation which is provided together with care and support for an adult by a shared lives carer, approved by the scheme in the carer’s home under the terms of an agreement between the carer, the adult and any local authority responsible for making the arrangement. The shared lives carer will normally be providing personal care but does not need to do so. Shared lives schemes are run by the local authority so it will be easy to identify if a particular arrangement amounts to shared lives accommodation. 

a

Further detail on the definition of each of the three different types of specified accommodation follows.

Care home accommodation

‘Care home’ means an establishment that provides accommodation, together with nursing or personal care,^[51] which must of course be registered as such. It includes registered nursing homes. The old deeming provision within the National Assistance Act 1948 covered this type of accommodation.

Supported living accommodation

Whether an arrangement amounts to supported living for the purpose of the deeming provisions may be more difficult to identify in some cases. The regulations^[52] and statutory guidance define supported accommodation in two alternative ways.

Firstly, “accommodation in premises which are specifically designed or adapted for occupation by adults with needs for care and support to enable them to live as independently as possible.”

The statutory guidance explains that means that the premises includes features which have been built in or changed in order to meet the needs of adults with care and support needs.

This includes safety systems and features which enable accessibility and navigation around the accommodation and minimise the risk of harm, as appropriate to the individual.

The second type of supported accommodation that comes within the deeming provisions is accommodation which is provided in “premises which are intended for occupation by adults with needs for care and support...in circumstances in which personal care is available if required.” In such a case the accommodation does not need to be specifically designed or adapted for such a purpose and the personal care provider does not need to be the same as the accommodation provider. Personal care is defined as physical assistance or prompting and supervision in connection with eating, drinking, toileting, washing or bathing, dressing, oral care or skin, hair and nail care.^[53]

This wide definition is in line with current policy ^[54] about supported living and is not limited to formally recognised supported living schemes or de-registered care homes that have commenced operating as supported living arrangements, provided that it is established that the premises are ‘intended for occupation’ by adults with care and support needs.

Establishing whether accommodation is supported living accommodation under the statutory definition is not always straightforward, and it may require significant factual evidence. Three anonymised determinations made by the Secretary of State illustrate the way in which the issue should be approached. ^[55]

How does the deeming provision affect ‘self-funders’?

This term ‘self-funder’ refers to an individual who is arranging and funding their own care. Usually this is because they are above the financial limit to qualify for assistance under the Care Act.

Sometimes people choose, for their own reasons, to opt out of the system and make their own arrangements for care and support.

If a person arranges their own care and support and enters into a contract with the home in a new area, they will acquire ordinary residence in the new area. If their situation changes (most usually their financial situation), they should approach the area in which the care home is situated. This applies regardless of how close to the financial threshold they were when they moved.

If an individual would be self-funding on the basis of their financial circumstances but is unable to enter into a contract with the provider, the local authority must meet their needs and may then claim full reimbursement from the individual. This might happen if the individual does not have the mental capacity to contract with the provider and there is no one else who is able to do so on their behalf. In such circumstances the local authority is acting under part one of the Care Act and the deeming provision will apply if the accommodation is of a specified type.

Where the local authority is exercising a broader power or duty, for example the provision of information, advice and guidance, it will not

be making arrangements and will not retain responsibility. This would apply even if practical assistance is given, provided it falls short of contracting with the provider

12-week disregard

As a general rule (with some exceptions), the value of an individual’s property will be taken into account in determining an individual’s financial eligibility for assistance under the Care Act. The 12-week disregard is a mechanism that allows the value of a person’s main or only residence (or former residence, if the person has just been admitted to a care home) to be temporarily ignored in calculating their available resources and therefore entitlement to assistance under the Care Act. Its purpose is to give the individual some time to decide how to proceed (sell, rent or deferred payments are the usual options). It is generally only available when an individual first enters a care home as a permanent resident or when another disregard becomes unavailable (for example a qualifying relative is no longer in the property).

During the disregard period, the authority in which the individual was ordinarily resident at the point of entitlement to the disregard will be the responsible authority. At the end of the 12 weeks the full value of the home is taken into account and the individual may become ordinarily resident in the new area if they are a self-funder who is contracting directly with the home or someone

is doing so on their behalf. This is in line with the settled purpose test in Shah.

During the 12 weeks the relevant local authority is required to offer deferred payments if appropriate.

Deferred payment agreements

Where an individual owns property which they do not want to sell immediately, they may enter into an agreement with the local authority whereby the local authority pays for the care and support which is repaid at a later date and a charge is put on the individual’s property to secure the debt. The local authority where the individual is ordinarily resident is responsible for offering and arranging the deferred payment agreement. Their responsibility will continue until the agreement is concluded, even if the individual moves to a different area during that time, as the deeming provision applies.

The lead authority

Local authorities involved in a dispute about an individual’s ordinary residence must not allow the existence of the dispute to prevent, delay, interrupt or otherwise adversely affect the meeting of the needs of the adult or carer to whom the dispute relates.

One authority must take responsibility for meeting the needs and must continue to do so until the dispute is resolved – that authority is called

the ‘lead authority’ (which will have certain responsibilities if the case is referred to the Secretary of State).

The lead authority is determined at the date the dispute arises and will be the local authority:

which is meeting the needs

or in whose area the adult is living

or in whose area the adult is present.

Steps to be taken prior to a dispute

As soon as possible after the dispute arises, the lead authority must:

identify all the other authorities who may be concerned in the dispute and co-ordinate their discussions to try to resolve the dispute

co-ordinate the attempts to resolve the dispute

obtain and share all relevant information

inform the adult about any progress in resolving the dispute

refer the dispute to the Secretary of State if it cannot be resolved by them within four months of the dispute arising.

Each local authority must:

• nominate and provide the contact details of an individual who will be the point of contact
• take all reasonable steps to cooperate to try to resolve the dispute between themselves
• engage in constructive dialogue to ensure a speedy resolution
• comply without delay with reasonable requests for relevant information
• keep each other informed of any relevant developments.

Referring a dispute to the Secretary of State

The lead authority is responsible for providing:

• copies of all correspondence relating to the dispute
• statement of facts signed on behalf of each authority involved which includes the following information:
• explanation of the nature of the dispute
• chronology of events leading up to the referral (including the date on which the dispute arose)
• details of the needs of the adult to whom the dispute relates
• which authority has met the needs and how they have been met including under what statutory provision
• details of the adult’s current place of residence and any relevant former places of residence
• where the issue of capacity is relevant:
• statement that authorities agree the adult has or lacks capacity
• any information relevant to the issue off capacity
• any other steps (in relation to the adult) taken by the local authorities which may be relevant
• what steps the local authorities have taken to resolve the dispute
• any other relevant information.

Any legal arguments to be relied on must be submitted within 14 days of the date of referral. 

[55] Ordinary residence determinations 1 of 2020, 2 of 2020, and 4 of 2019. household.”

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