Ordinary residence and Care Act duties

A local authority only has a duty to meet eligible needs for an adult who is 'ordinarily resident' in its area.[1] The question of where a person is ordinarily resident is determined by looking at the facts in each particular case. There is no definition of 'ordinary residence' in the Care Act 2014, so the term should be given its ordinary meaning, ie where the person lives.[2] The courts held in one case that there was no perceptible difference between the terms 'resident' and 'ordinarily resident'.[3]

Statutory guidance to the Care Act on the meaning of 'ordinary residence'[4] states that authorities should consider each case on its merits, and that the concept involves questions of both fact and degree – factors such as time, intention and continuity must be taken into account.

Ordinary residence can be acquired as soon as a person moves to an area if their move is voluntary and for settled purposes, regardless of whether they own, or have an interest in, a property in another local authority area. Being in an area for 'settled purposes' does not imply any minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there.

Where an adult lacks mental capacity to decide where to live, 'deeming' provisions apply so that ordinary residence remains with the authority that originally placed the person in accommodation.

Urgent needs

Where a person who is ordinarily resident in one area becomes in urgent need of accommodation while in another area, the Care Act gives authorities the power to meet such urgent needs.[5]

There should be continuity of care when an adult in receipt of care services moves from one authority (the 'first authority') to another (the 'second authority').

The procedure is as follows:[6]

• the adult or the first authority notifies the second authority that the adult intends to move to its area

• the second authority notifies the first authority that it is satisfied the adult has a genuine intention to move, and provides the adult with appropriate information over and above the general information it must provide to anyone in its area

• the first authority provides the second authority with copies of relevant documentation it holds, including care plans, recent needs assessment, independent personal budget

• the second authority carries out a needs assessment, having regard to the first authority's care and support plan

• pending the move, the first authority must keep in touch with the second authority in order to find out the progress it is making in preparing to meet the adult's needs, and make sure the adult is informed

Where the second authority's assessment would result in a different level of service to that provided by the first authority, it must explain any difference in writing to the adult.[7]

If the second authority has not finalised its assessment and/or arrangements to provide services when the adult arrives in its area, it must meet the needs which the first authority had been meeting until its own assessment has been finished.[8]

Where it is deemed that the adult remains ordinarily resident in the area of the first authority, the second authority can reclaim its costs from the first authority.[9]

In certain situations where a person moves from one local authority area into another local authority area, that person is deemed to be ordinarily resident in the area where they previously lived. This applies where a person goes into hospital, or moves into any of the following 'specified accommodation':[10]

• a care home

• supported housing

• a 'shared lives' scheme (a recognised scheme which enables an adult to receive care and/or have a live-in carer)

In these circumstances, an adult is treated as remaining ordinarily resident in the local authority area where they lived (or was present, if of no settled residence) immediately before moving into the specified accommodation. The authority where the adult previously lived remains responsible for funding their care.

Adults lacking capacity previously accommodated under the Children Act 1989

Where an adult who lacks capacity to choose where to live was accommodated under section 20 of the Children Act 1989 whilst a child, on reaching adulthood and requiring services under the Care Act 2014 (as well as while remaining a child) they are deemed to be ordinarily resident in the area of the authority that first took responsibility for placing them under that Act.[11] Thus, the authority that places a child under the Children Act 1989 remains financially and administratively responsible for that person indefinitely if they lack capacity to voluntarily adopt to live in another area.

Accommodated under the Mental Health Act 1983

The rules on ordinary residence for people who are provided with accommodation under the Mental Health Act 1983 are determined by that legislation.

Cross-border placements

Where a local authority in the UK arranges for an adult with care/support needs to be provided with specified accommodation (a care home, supported housing, or a 'shared lives' scheme) in another area of the UK, including cross-border to or from Wales, Scotland or Northern Ireland, the responsibility for the adult's care remains with the first authority and does not transfer to the new authority.[12]

Where a registered care and support provider's business fails and the provider is unable to continue to meet an adult's care needs, the local authority in whose area the provider was meeting the care needs has a temporary duty to ensure that the adult's care needs continue to be met, regardless of ordinary residence.[13] This duty continues for as long as the authority considers necessary. This duty to applies to Welsh, Scottish and Northern Irish authorities, so that, for example, a Welsh authority has a temporary duty to meet the care and support needs of an adult whose care in Wales has been arranged by an English authority.[14]

It is usually possible for authorities to decide that an adult has lived in a place for long enough, or has sufficiently firm intentions in relation to that place, to have acquired ordinary residence there. It will be only in rare circumstances that an authority will conclude that an adult is of no settled residence anywhere, for example:[15]

• moving somewhere on a temporary basis after clearly and intentionally leaving another area

• returning to England after a period of living abroad having given up the previous home

The Care Act is clear that, where an adult is of no settled residence, the authority where they are physically present should treat them as if they were ordinarily resident in its area.[16]

Regulations issued under the Care Act 2014 provide for how disputes on ordinary residence between English authorities are to be managed, including the provision of support pending resolution of a dispute.[17] The Act also makes provision for where the dispute is between English and Welsh/Scottish/Northern Irish authorities.[18]

Statutory guidance to the Care Act states that, in the event of a dispute as to where a person is ordinarily resident, the key priority should be the well-being of the service user. One local authority must, without delay, accept responsibility for the provision of services until the dispute is resolved. If the adult's needs are already being met by one authority, that authority must continue to meet the needs; if no authority is meeting the needs, then the authority where the person is living or physically present must accept the responsibility.[19]

The guidance also considers various situations where ordinary residence could be an issue, including where a British citizen who appears to have care/support resumes permanent residence in the UK after a period abroad, where someone who was accommodated whilst a child under the Children Act 1989 turns 18, and where there are urgent needs.[20]

National Assistance Act 1948

The rules on ordinary residence above relate to the Care Act 2014. Different rules may apply where there is a dispute on the ordinary residence of person who required community care services under the National Assistance Act 1948 prior to 1 April 2015.[21]