Clarifying entitlement to community care and health services

This article was first published in Lexis Nexis.

Original news

Guidance: Identification of the ordinary residence of people in need of community care services – England, updated October 2013.

Following the NHS reforms and the Health and Social Care Act 2012 (which largely took effect from 1 April 2013) the Department of Health has issued updated guidance on determining "ordinary residence" for people requiring local community care services. The guidance explains how to decide where a person is ordinarily resident for the purposes of the National Assistance Act 1948 and certain other legislation.  It also sets out how to identify where responsibility lies between authorities for the funding and/or provision of care for people aged 18 and over who are assessed as needing social care services.

When does ordinary residence come up as an issue?

Community care services are generally provided to those with relevant assessed needs by the authority of "ordinary residence". So, ordinary residence has tended to be a question for local authorities considering the entitlement to community care services. This includes accommodation and domiciliary services under the National Assistance Act 1948 (NAA 1948) and accommodation under the Children Act 1989. Ordinary residence is also relevant for identifying which local authority is the supervisory body for the purposes of the Mental Capacity Act 2005 (and, conveniently some of the deeming provisions from the NAA apply to the MCA 2005, para 183 Sched A1).

However, the concept has wider relevance when combined with the idea that residence should be lawful. This has recently been applied in the context of access to student finance (R (on the application of Arogundade) v Secretary of S for Business, Innovation and Skills [2013] EWCA Civ 823, [2013] All ER (D) 177).  It was applied in respect of the NHS in R (on the application of YA) v Secretary of State for Health [2009] EWCA Civ 225, [2010] 1 All ER 87. The Immigration Bill 2013 was published on 10 October. This extends the idea that services are provided to those lawfully ordinarily resident in an area – although it does not apply to local authority services, where there are other provisions.

There are areas where a slightly different test is used. The Health and Social Care Act 2012, s13(3) (HSCA 2012) sets out the responsibilities of clinical commissioning groups to persons who usually reside in an area.

So, by far and away the most important application of “ordinary residence” is for local authorities to determine which authority is required to provide services.

Why does it matter?

It raises two recurring problems for local government – administration and money. Deciding which authority should carry out an assessment and, if appropriate, provide services is not always easy. Arranging for responsibility to pass from one authority to another is almost never easy. And, of course, quite large sums of money can be at stake.

Where people can move from area to area easily – particularly in London where people can cross administrative lines without feeling they have moved area at all – there is a risk of responsibility moving regularly from authority to authority.

What is the starting point for working out ordinary residence?

Despite its importance statute does not define ordinary residence. The starting point is Shah v Barnet London Borough Council [1983] 2 AC 309, [1983] 1 All ER 226, which decided that ordinary residence means a place "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". Therefore, determining ordinary residence is likely to involve difficult factual assessments. Time, intention and continuity are all likely to be relevant.

What are the key steps when identifying an individual’s ordinary residence for the purpose of social care?

There are lots of intricacies – and they are particularly likely to arise where people need local government services.

People who lack capacity and may not have adopted a place of residence voluntarily

The case of Vale tries to tackle this, but not very satisfactorily (R v Waltham Forest London Borough Council, ex p Vale (1985) Times 25 February).  Vale says you should treat the person as if they did have capacity or as if their ordinary residence followed their parents. The approach in this case is likely to be updated soon, probably in a Court of Protection case.

People placed out of area

What happens if one local authority places someone in accommodation in the area of another authority?  Statute deals with this by deeming provisions, for example, NAA 1948, s24(5), which provides that an adult is deemed to be ordinarily resident in the same area as they were immediately before residential accommodation was provided. CA 1989, s 105(6) disregards the time which the service user spent in accommodation provided by a local authority when determining ordinary residence for people under age 18.

However, there comes a point at which it is artificial to say that someone is ordinarily resident in an area they have not been to for many years and where they may have no remaining family. One recent Court of Appeal case concerned the responsible authority for a baby born to a child placed outside the local authority of their ordinary residence. Should that baby be said to ordinarily reside in an area it had no connection with because its mother had deemed ordinary residence there?

Young people leaving home and breaking links with their families

Generally the law says that children’s ordinary residence follows their parents (Re: P (GE) (an infant) [1964] 3 All ER 977), but not if the relationship is deliberately broken.  In this situation the young person’s ordinary residence probably moves with them to the new authority.

People who require services shortly after they move local authority area

One example is where someone moves into a care home in a new local authority on a self-funding basis, but quickly exhausts their funds.  Statute makes provision for an authority to recover money from an authority of previous ordinary residence in some circumstances (NAA 1948, s 32 and CA 1989, s 29).

What situations have been identified as causing issues? How does this guidance seek to address them?

It would be convenient for the Secretary of State if this issue went away.  It does not really matter to central government which local authority provides services.  The guidance does a good job of providing relatively simple answers to quite complicated questions, albeit over 75 pages, hardly making it a quick read.

People who self-fund their residential care

The guidance says simply that if someone moves to a new area under private arrangements, and is self-funding their ordinary residence probably moves with them (para [72]). The complicating factor is if the service user requires the help of the local authority to "make the arrangements".  If that happens the accommodation may be provided under NAA 1948, Pt 3, meaning that the placing local authority remains the authority of ordinary residence (para [75]).  It will depend on the type of assistance and the extent of it. Offering advice, information and help is not the same as "making arrangements". Other complicating factors include the 12-week property disregard and deferred payment arrangements (paras [85] and [89]).

People moving into independent living

In general, independent living is arranged by a tenancy agreement paid for by housing benefit. This is unlikely to amount to "making arrangements" and so someone moving out of residential care to independent living will usually acquire a new ordinary residence. However, there are circumstances in which a local authority may "make arrangements", such as where the service user lacks capacity (para [104]).

Transition to adult services

The basic rule is that service users move from CA 1989 to NAA 1948 when they turn 18.  However, leaving care services are provided by the authority which provided CA 1989 services, regardless of ordinary residence.  Since adult services are provided by the authority of ordinary residence it is possible that two authorities will be involved (para [156]).  Essentially the guidance says that presumptions about ordinary residence are more likely to be rebutted in this situation than most others (para [151]).

What about the health service?

Quite often people who require community care services require significant health services.  One of the issues there is continuing health care provision. Which clinical commissioning group should fund and arrange required health care?

The HSCA 2012 inserts new sections into the NHS Act 2006 providing that a clinical commissioning group has responsibility for people who are (1) providing with primary care by a GP who is a member of the CCG or (2) usually resident in the area covered by the CCG and are not provided with primary care by a member of any CCG.

It obviously makes sense that health care is provided by the CCG of which your GP is a member.  After all the service is now meant to be "GP led".  However where the legal tests differ so will the outcomes.  The result is that “… a local authority and a CCG located several miles apart [may] need to work together to provide a joint package of health and social care” (guidance para 119).

What does the Immigration Bill 2013 provide?

Section 175(2)(b) National Health Service Act 2006 already provides that the NHS may charge “persons not ordinarily resident in Great Britain”. This ties in with the cases mentioned earlier which deal with the concept of ordinary residence as a potential bar on services rather than merely the basis for deciding which state body provides them.  Section 34 of the Immigration Bill 2013 provides that for these purposes a person not ordinarily resident includes someone who requires leave to enter the UK but does not have it or has leave for a limited period.

The limits on access to local government services are largely contained in Schedule 3 of the Nationality, Immigration and Asylum Act 2002 and are not based on redefining "ordinary residence".

What can local authorities do if disputes arise about ordinary residence?

In most cases local authorities can apply to the Secretary of State for a determination of which local authority is responsible. The guidance emphasises that services should continue regardless of disputes about ordinary residence and so, in theory, service users will not be affected by these disputes. However, disputes between local authorities can generally be referred to the Secretary of State (although not under the Mental Health Act 1983). There is subordinate legislation setting out the procedure to be followed, such as the documents to be provided.

The rules require disputes to be referred to the Secretary of State quickly.  The process is informal and parties provide documentation, legal submissions and an account of the facts.

What should local authorities do?

The single most important thing is to ensure that a consistent approach is taken to accepting service users and passing them on to other authorities. Otherwise a local authority runs the risk of retaining clients living in far flung places and with whom it has little contact (and no legal responsibility for) as well as taking on new clients.  At the least that will be expensive but it will also lead to services being provided for people it knows little about. So, local authorities need a protocol in place to identify cases to pass to other authorities and criteria for accepting cases and to ensure that the system is applied equally.