Statutory machineryCare and Support Statutory GuidanceZambrano carers:leaversCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory Guidance
12.13The current statutory machinery is found at:
•sections 39–41 of the Care Act 2014;
•the Care and Support (Ordinary Residence)(Specified Accommodation) Regulations 2014;
•the Care and Support (Disputes Between Local Authorities) Regulations 2014;
•articles 5 and 6 of the Care Act (Transitional Provision) Order 2015;
•the Care and Support Statutory Guidance, at Chapter 19 and Annex H;
•the Care and Support (Ordinary Residence) (Specified Accommodation) (Wales) Regulations 2015;
•the Care and Support (Disputes about Ordinary Residence, etc) (Wales) Regulations 2015.
12.14It may also be useful to refer to the NHS guidance,
Who Pays: Determining responsibility for payments to providers (August 2013).
1www.england.nhs.uk/wp-content/uploads/2014/05/who-pays.pdf.The deeming provisions
12.15Section 39 of the Care Act 2014, read together with the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014,
2SI No 2828.sets out the statutory deeming provisions, whereby a person accommodated in the area of local authority B will be deemed to be ordinarily resident in the area of local authority A.
First deeming provision
12.16It had been a feature of adult social care, in recent years, that after local authority A placed an adult in care home accommodation in local authority B, and that care home accommodation de-registered and became supported housing, or the adult moved out of the care home and into supported housing, or any form of housing, in the area of local authority B, responsibility shifted to local authority B.
12.17The Care Act 2014 reverses that: responsibility in such cases, and in similar cases, will now remain with local authority A.
12.18An adult resident in the area of local authority B must be treated for the purposes of Part 1 of the Care Act 2014 as being ordinarily resident in the area of local authority A if:
•The adult has needs for care and support which ‘are only able to be met’ if the adult is living in ‘specified accommodation’: a care home, in shared lives accommodation or in supported living accommodation, provided that the adult’s needs for care and support are being met under part 1 of the Care Act 2014 whilst he is living in the accommodation);
•the adult is living in such accommodation in England (or has lived in a series of such accommodations);
•he or she was ordinarily resident in local authority A immediately before going to live in ‘specified accommodation’, so long as he or she lives continuously in one or more kinds of ‘specified accommodation’;
•or, not having a settled residence, was present in local authority A immediately before going to live in ‘specified accommodation’, so long as he or she lives continuously in one or more kinds of ‘specified accommodation’:
see sections 39(1)–(3) of the Care Act 2014 and regulations 3–5 of the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014.
12.19Important advice is provided by the Care and Support Statutory Guidance:
19.51 Need should be judged to be ‘able to be met’ or of a kind that ‘can be met only’ through a specified type of accommodation where the local authority has made this decision following an assessment and a care and support planning process involving the person. Decisions on how needs are to be met, made in the latter process and recorded in the care and support plan, should evidence that needs can only be met in that manner. Where the outcome of the care planning process is a decision to meet needs in one of the specified types of accommodation and it is the local authority’s view it should be assumed that needs can only be met in that type of accommodation for the purposes of ‘deeming’ ordinary residence. This should be clearly recorded in the care and support plan. The local authority is not required to demonstrate that needs cannot be met by any other type of support. The local authority must have assessed those needs in order to make such a decision – the ‘deeming’ principle therefore does not apply to cases where a person arranges their own accommodation and the local authority does not meet their needs.
…
19.55
The ordinary residence ‘deeming’ principle applies most commonly where the local authority provides or arranges care and support in the accommodation directly. However, the principle also applies where a person takes a direct payment and arranges their own care (since the local authority is still meeting their needs). In such cases, the individual has the choice over how their needs are met, and arranges their own care and support. If the care plan stipulates that person’s needs can be met only if the adult is living in one of the specified types of accommodation and the person chooses to arrange that accommodation in the area of a local authority which is not the one making the direct payments then the same principle would apply; the local authority which is meeting the person’s care and support needs by making direct payments would retain responsibility. However, if the person chose accommodation that is outside what was specified in the care plan or of a type of accommodation not specified in the regulations, then the ‘deeming’ principle would not apply.
Second deeming provision
12.20An adult who is being provided with accommodation as an after-care service under section 117 of the Mental Health Act 1983 must be treated for the purposes of Part 1 of the Care Act 2014 as being ordinarily resident in the area of the local authority with responsibility for providing them with after-care services: section 39(4) of the Care Act 2014.
12.21Under section 117(3) of the Mental Health Act 1983, the local authority responsible for providing after-care services is the local authority for the area where the patient was ordinarily resident before his detention or, if he the patient had no settled residence, where the patient was present before his detention, or (if that cannot be established) the area where he is sent on discharge: see para
19.112.
Third deeming provision
12.22An adult provided with ‘NHS accommodation’ must be treated for the purposes of Part 1 of the Care Act 2014 as ordinarily resident in the area where he was ordinarily resident before the accommodation was provided or, if he had no settled residence, in the area where he was present: section 39(5) of the Care Act 2014.
12.23‘NHS accommodation’ is accommodation under the National Health Service Act 2006, the National Health Service (Wales) Act 2006, the National Health Service (Scotland) Act 1978 or article 5(1) of the Health and Personal Social Services (Northern Ireland) Order 1972: section 39(6) of the Care Act 2014.
Fourth deeming provision: prisoners and other persons subject to criminal law
12.24By virtue of section 76(1)–(3) of the Care Act 2014:
•prisoners detained in prison;
•adults residing in approved premises; and
•adults residing in any other premises because of a requirement imposed as a condition of a grant of bail in criminal proceedings –
are to be treated for the purposes of Part 1 of the Care Act 2014 (all the ‘care and support’ provisions) as being ordinarily resident in the area of their prison/approved premises/bail accommodation.
12.25This plainly requires prisoners (etc) to be treated as being ordinarily resident in their area of their prison (etc), so that the local authority for that area must be treated as being responsible for addressing their needs for care and support, whilst they remain so resident.
12.26This does not entail, however, that the prisoner (etc) must be treated as continuing to be ordinarily resident in the area of their prison (etc) on release, as the Care and Support Statutory Guidance explains, at paragraphs 17.48–17.51. The advice given here is that:
•where the prisoner (etc) requires a type of accommodation specified under section 39 of the Care Act 2014, the presumption should be that they remain ordinarily resident in the area where they were ordinarily resident before their sentence;
•otherwise, each case must considered on an individual basis, bearing in mind that it may not be possible for some prisoners to return to their previous area of ordinary residence;
•the local authority where a prisoner (etc) with care needs intends to move should take responsibility for the assessment of need;
•there should be early involvement of all relevant agencies in release planning to minimise the scope for disagreements and ensuing difficulties.
Fifth (non-statutory) deeming provision
12.27The Care Act 2014 does not require a person to be treated as being ordinarily resident, for the purposes of Part 1, in the area of the local authority that placed the person in local authority B under the Children Act 1989.
12.28However, the effect of the
Cornnwall case
3R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46, [2015] 3 WLR 213, (2015) 18 CCLR 497.was to create such an implied deeming provision, arising under the then statutory machinery, by way of judicial reasoning that on any view came very close to judicial legislation (and
was judicial legislation, according to the dissenting judgment of Lord Wilson JSC). One can only imagine that the Supreme Court will stick to its guns on that issue, notwithstanding the changed legislative context, but it would certainly be convenient if legislation were to put the matter beyond doubt.
12.29The Care and Support Statutory Guidance appears to accept that, in its revised guidance at paragraphs 19.37 – 19.41, set out above at paragraph
12.12.
Transitional provisions and the earlier regime
12.30This is dealt with in article 6 of the Care Act 2014 (Transitional Provision) Order 2015.
12.31Article 6(2) of the Order provides that section 39 of the Care Act 2014 does not have effect in relation to a person who was being provided with non-hospital NHS accommodation, shared lives scheme accommodation or supported living accommodation ‘before the relevant date in relation to that person’. Such persons will not, therefore, be deemed to be ordinarily resident in the area of the placing authority, as a result of section 39 coming into force, but will remain ordinarily resident in the area of the receiving authority.
12.32Article 6(1) of the Order provides that a person who was deemed to be ordinarily resident in a local authority area, by virtue of section 24(4) or (6) of the National Assistance Act 1948, ‘immediately before the relevant date in relation to that person’, is to be treated as being ordinarily resident in that area for the purposes of Part 1 of the Care Act 2014. Thus persons placed in ‘NHS accommodation’, as defined, will remain deemed to be ordinarily resident in the area where they were resident before the placement; and persons provided with residential accommodation by a local authority, with the consent of the local authority of ordinary residence, will remain deemed to be ordinarily resident in that area.
12.33The ‘relevant date’ in relation to a person has to assessed using articles 1 and 2 of the Order. The ‘relevant date’ will be:
•1 April 2015, in relation to persons not in receipt of support or services, or payments towards such (articles 1 and 2(1));
•the date that the local authority has completed a review of the needs of a person who was in receipt of support or services, or payments towards such, on the 1 April 2015 (articles 1 and 2(2));
•1 April 2016, in the case of a person who was in receipt of support or services, or payments towards such, on the 1 April 2015, but whose case was not reviewed by the 1 April 2016 (articles 1 and 2(3)).
Annex H of the Care and Support Statutory Guidance
12.34Annex H contains advice and practical examples of how to apply the ordinary residence test and the deeming machinery in a number of typical situations:
•H1–7: local authorities are entitled to meet urgent needs irrespective of ordinary residence;
•H8–13: the local authority of ordinary residence is responsible for deferred payment agreements and remains responsible (despite any changes of ordinary residence) until the agreement is concluded;
•H14–20: the local authority of ordinary residence is responsible for a care home placement during the 12-week property disregard period but if, after that, the adult becomes a self-funder in a different local authority area, then his or her place of ordinary residence is likely to change;
•H21–23: those who fund and manage their own care placement will likely become ordinarily resident in the area where they choose to live but self-funders whose accommodation is arranged for them by their local authority of ordinary residence will be deemed to remain ordinarily resident in that area;
•H24–30: persons accommodated under NHS Continuing Healthcare remain ordinarily resident in the area where they were ordinarily resident before, or present (if they were not settled anywhere);
•H31–34: British citizens resuming permanent residence in England after a period abroad will usually acquire an ordinary residence straight away in the place where they are living for settled purposes and intend to remain; otherwise they may have no settled residence, or have urgent needs;
•H35–37: the same applies to veterans leaving the armed forces and their families;
•H38–39: young people in transition for children’s services to adult care and support (but see now, also, the Cornwall case);
•H40–45: care leavers and the 1989 Act;
•H46–50: provides advice about ordinary residence disputes in the context of delayed hospital discharges;
•H51–63: provides advice about ordinary residence disputes in the context of Deprivation of Liberty Safeguards under the Mental Capacity Act 2005.
Dispute resolution
12.35Any disputes about where an adult is ordinarily resident for the purposes of Part 1 of the Care Act 2014 are to be determined by the Secretary of State or a person appointed by the Secretary of State, subject to any review by the Secretary of State, or appointed person (undertaken within three months): section 40. By virtue of article 5 of the Care Act 2014 (Transitional Provision) Order 2015, the Secretary of State will determine all ordinary residence disputes, that are to be determined on or after the 1 April 2015, under section 40 of the Care Act 2014, even if they relate to disputes under the previous regime (usually, under section 24 of the National Assistance Act 1948).
12.36Further detail is contained in the Care and Support (Disputes between Local Authorities) Regulations 2014:
4SI No 2829.•the needs of the individual must be met by the local authority meeting needs at the time of the dispute or, if there is no such authority, the local authority where the individual is living, or present (reg 2);
•all relevant local authorities must be identified, must share information and seek to resolve the dispute and co-operate (reg 3);
•if the dispute cannot be resolved, it must be referred to the Secretary of State in accordance with a range of procedural requirements (reg 4):
Referral: disputes about ordinary residence or continuity of care
4(1) The referral must include the following documents–
(a)a letter signed by the lead authority in relation to the dispute, stating that the dispute is being referred;
(b)a statement of facts signed on behalf of each of the authorities which includes the information specified in paragraph (2); and
(c)copies of all correspondence between the authorities which relates to the dispute.
(2)The specified information is–
(a)an explanation of the nature of the dispute;
(b)a chronology of the events leading up to the referral of the dispute, including the date on which the dispute arose;
(c)details of the needs of the adult (‘the relevant adult’) or carer to whom the dispute relates from the beginning of the period to which the dispute relates;
(d)a statement as to which local authority has met those needs since then, how those needs have been met and the statutory provisions under which they have been met;
(e)details of the relevant adult’s place of residence, and of any former places of residence which are relevant to the dispute;
(f)where the person to whom the dispute relates is a carer, details of the place of residence of the adult needing care, and of any former places of residence that are relevant to the dispute;
(g)in a case where the relevant adult’s capacity to decide where to live is relevant to the dispute, either–
(i)a statement that the authorities agree that the adult has, or lacks, such capacity; or(ii)information which appears to any of the authorities to be relevant to the question of whether the adult has, or lacks, such capacity;
(h)a statement as to any other steps taken by the authorities in relation to the relevant adult or carer which may be relevant to the dispute;
(i)details of the steps that the authorities have taken to resolve the dispute between themselves; and
(j)any other information which appears to any of the authorities to be relevant to the determination of the dispute.
(3)The authorities must submit any legal arguments they rely on in relation to the dispute within 14 days of the date on which the dispute is referred.
(4)If a local authority submits legal arguments, it must–
(a)send a copy of those arguments to the other authorities; and
(b)provide evidence to the appropriate person that it has done so.
(5)If the appropriate person asks any of the authorities to provide further information, the local authority to which the request is made must comply without delay.
12.37The Secretary of State has published anonymised ordinary residence determinations on the internet, which allows one to get a feel as to how such determinations are reached and as to the matters that the Secretary of State has already decided.
5www.gov.uk/government/collections/ordinary-residence-pages.Financial adjustments
12.38By virtue of section 41 of the Care Act 2014, local authority is entitled in certain circumstances to recover the cost of providing care and support, or support, from local authority B. Those circumstances are where:
•local authority A was providing care and support, or support, to X under section 18 or 20(1) of the Care Act 2014 (services provided under section 19 or 20(6) being disregarded for these purposes);
•it then transpires (whether or not because of a determination under section 40) that X was ordinarily resident in local authority B;
•local authority A agrees to assign its rights under any deferred payment agreement to local authority B.
12.39Paragraphs 19.89–19.90 of Chapter 19 of the Care and Support Statutory Guidance apply.
Cross-border placements and disputes
12.40Section 39(8), Schedule 1 to the Care Act 2014 and the Care and Support (Cross-border Placements and Business Failure: Temporary Duty)(Dispute Resolution) Regulations 2014 essentially replicate the scheme described above, so that it applies as between local authorities in England, Wales and Scotland and Health and Social Care trusts in Northern Ireland. Accordingly, in outline:
•persons placed by an English local authority in accommodation in Wales are to be treated as remaining ordinarily resident in the area of the English local authority (and so on) (Sch 1 paras 1–4) and NHS accommodation does not affect that (Sch 1 para 8);
•disputes are to be determined by the relevant Secretary of State, as specified in Sch 1 para 5 and reg 2 of the Regulations), broadly in the same manner as in the case of purely English disputes (see regs 4–8);
•where an authority in one jurisdiction has provided care and support, or support, to a person whom it transpires was resident in another jurisdiction, they are entitled to reimbursement from the local authority of ordinary residence in that other jurisdiction (Sch 1 paras 6 and7).
12.41The Care and Support Statutory Guidance at Chapter 21 applies, disputes being addressed at paragraph 21.58 onwards.
12.42Provision is made for resolving disputes about responsibility for the provision of mental health after-care between English and Welsh authorities.
6www.gov.uk/government/uploads/system/uploads/attachment_data/file/416555/MH_aftercare.pdf.12.43The Scottish government has published a suite of guidance on ordinary residence and cross-border disputes.
7www.gov.scot/Topics/Health/Support-Social-Care/Financial-Help/OrdinaryResidence.