ORDINARY RESIDENCE & THE CARE ACT 2014

Transcription

1 ORDINARY RESIDENCE & THE CARE ACT 2014

2 Ordinary Residence Relevant Statutory Provisions: Sections Care Act 2014 Sections Care Act 2014 The Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014 The Care and Support (Disputes Between Local Authorities) Regulations 2014 Section 117 Mental Health Act 1983 Relevant Guidance: Chapters 19 and 20 Statutory Guidance, Annex H1-H8 Key Case-Law: R. (on the application of Cornwall Council) v Secretary of State for Health [2014] EWCA Civ 12; [2014] 1 W.L.R R v Waltham Forest London Borough Council, Ex p Vale The Times, 25 February 1985 R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309 Introduction 1. The Care Act 2014 provides that the duty or power for a local authority to provide care and support is determined by whether the adult requiring care is ordinarily resident in the area of the local authority or is present in its area but of no settled residence. 2. As the Statutory Guidance recognises at paragraphs 19.1 to 19.3, the concept of ordinary residence is not new, and both social and health care professionals will be familiar with the existing provisions of sections 21 to 26 of the National Assistance Act 1948 which determine which local authority was responsible for the provision of care.

3 Ordinary Residence pre-care Act 2014 Section 47 NHS CCA 1990 & Assessments 3. Under section 47 of the National Health Service and Community Care Act 1990 ( NHS CCA 1990 ), local authorities have a duty to assess the needs of any person for whom the authority may provide or arrange the provision of community care services and who may be in need of such services. Because local authorities have a power to provide services to people who live outside of their area, the duty to assess is not limited to people who are ordinarily resident in the authority s area. National Assistance Act The existing statutory framework on ordinary residence is set out in sections 21, 24, 29 and 32(3) to (5) of the National Assistance Act 1948 ( NAA 1948 ), and the supporting directions Responsibility for the provision of accommodation and community care services under sections 21 and 29 of the NAA 1948 Act is largely based on the concept of ordinary residence. However, there is no definition of ordinary residence in the NAA Section 21(1) NAA 1948 provides each local authority with a power, and so far as directed by the Secretary of State, a duty, to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. The Secretary of State converted the power to provide residential accommodation in section 21(1) of the 1948 into a duty by issuing directions ( the 1 LAC(93)10: Approvals and Directions for Arrangements from 1 April 1993 contains approvals and directions by the Secretary of State in respect of the provision of residential accommodation and welfare services by local authorities. The Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010 also direct local authorities to provide services to individuals pending the outcome of an ordinary residence dispute.

4 Directions ). The directions impose a duty to provide residential accommodation to people to whom section 21 applies and who are ordinarily resident in the local authority s area. They also direct local authorities to provide accommodation to people not ordinarily resident in the local authority area, but who are: in urgent need of accommodation (including temporary accommodation needed in unforeseen circumstances), are, or have been, suffering from a mental disorder, or require accommodation for the purposes of the prevention of mental disorder. 7. The Directions approve the provision of accommodation under section 21 in other cases, such as for people of no settled residence or people ordinarily resident in another local authority s area where that local authority consents. 8. Section 24 contains the key provisions on ordinary residence that relate to residential accommodation (it does not apply to services under section 29 NAA 1948). These provisions set out where responsibility lies between local authorities for the provision of Part 3 NAA 1948 accommodation for people with assessed needs. 9. Section 24(1) provides that it is the local authority in which the person is ordinarily resident that has power to provide residential accommodation, and as set out above directions made under section 21 convert this power into a duty. 10. Section 24(3) enables local authorities to treat those of no settled residence or in urgent need as if they are ordinarily resident in their area and provide them with residential accommodation. Directions referred to above made under section 21 convert this power into a duty in relation to people in urgent need.

5 11. Section 24(4) provides local authorities with a power to provide residential accommodation for persons ordinarily resident in another local authority area, provided they have the consent of the other local authority to do so. 12. Section 24(5) sets out the first of two provisions which disapply the normal approach to ordinary residence (referred to as the deeming provisions ) and provides that where a person is provided with residential accommodation under Part 3, they are deemed to continue to be ordinarily resident in the area (if any) in which they were ordinarily resident immediately before the residential accommodation was provided. 13. Section 24(6) sets out the second of the two deeming provisions and provides that a person who is in receipt of NHS accommodation is deemed to be ordinarily resident in the area (if any) in which they were ordinarily resident immediately before they were provided with the NHS accommodation. 14. Section 29(1) provides that it is the local authority in which a person is ordinarily resident that has a power to provide non-residential services, and directions made under this section convert this power into a duty. 15. Section 32(3) gives the Secretary of State responsibility for determining ordinary residence disputes arising under Part 3 NAA The procedure for applying to the Secretary of State for a determination is dealt with in Part 5 of the Department of Health s latest guidance on the subject, Ordinary residence: Guidance on the identification of the ordinary residence of people in need of community care services, England (2013). Section 32(4) and (5) deal with cross-border disputes between English and Welsh local authorities.

6 The New Law Assessments & Care Needs 16. Sections 9 and 10 of the Care Act 2014 provide that where it appears to a local authority that an adult may have needs for care and support or a carer may have needs for support, the authority must assess whether the adult or carer does have needs for care and support, and if the adult or carer does, what those needs are. This is the needs assessment and the duty to carry it out applies regardless of the authority's view of the level of the adult's needs for care and support or carer s needs for support (section 9(3)(a) and section 10(3)(a)), or the level of the adult's or carer s financial resources (section 9(3)(b) and section 10(3)(b)). Neither sections 9 or 10 make express reference to the local authority s preliminary view of the adult s or carer s ordinary residence (neither did section 47 of the NHSCCA 1990); it is implicit, however, that the duty to assess arises regardless of the authority s preliminary view as to ordinary residence the authority should establish whether or not the adult or carer is ordinarily resident at a later stage (see below). 17. Next, the local authority, having determined that there are needs must determine if any of those needs meet the eligibility criteria. 18. Section 13(1) of the Care Act 2014 provides that where a local authority is satisfied on the basis of a needs or carer s assessment that an adult has needs for care and support or that a carer has needs for support it must determine whether any of the needs meet the eligibility criteria. 19. Finally, if the local authority determines that at least some of the needs are eligible needs it should then at this stage determine whether the adult needing care is ordinarily resident in the local authority s area.

7 20. Sections 13(3) and (4) provide that where at least some of an adult s needs for care and support or a carer s needs for support meet the eligibility criteria the local authority must (as relevant) establish whether the adult is ordinarily resident in the local authority s area or the adult needing care is ordinarily resident in the local authority s area. 21. Section 18(1)(a) of the Care Act 2014 provides that a local authority, having made a determination under section 13(1) must meet the adult s needs for care and support which meet the eligibility criteria if the adult is ordinarily resident in the authority's area or is present in its area but of no settled residence. 22. Section 19(1) of the Care Act 2014 provides that a local authority, having carried out a needs assessment and if required to do so a financial assessment may meet an adult s needs for care and support if (as relevant) the adult is ordinarily resident in the authority's area, or is present in its area but of no settled residence, and the local authority is not subject to a duty to meet needs for care and support under section Section 19(2) of the Care Act 2014 provides that a local authority having made a determination under section 13(1) may meet an adult's needs for care and support which meet the eligibility criteria if (as relevant) the adult is ordinarily resident in the area of another local authority. 24. Section 20 of the Care Act 2014 contains similar duties and powers in respect of carers. Note that it is the ordinary residence of the adult that needs care, rather than the carer, that is material, see: section 20(1)(a) CA 2014.

8 Ordinary Residence 25. Like the National Assistance Act 1948 before it, the Care Act 2014 does not define ordinary residence. Local authorities should apply the case law developed as to the meaning of ordinary residence under the National Assistance Act It is not known whether the Department of Health Guidance issued in October 2013 entitled: Ordinary residence: Guidance on the identification of the ordinary residence of people in need of community care services, England will be formally withdrawn or impliedly superseded by the Statutory Guidance. Local authorities should from the date the Care Act 2014 comes into force treat that guidance with caution, given that it refers to the existing law which is to be repealed. In addition, it was published before the recent Court of Appeal decision in R (on the application of Cornwall Council) v Secretary of State for Health [2014] EWCA Civ Update: The existing DoH Guidance (subject to the development of the common law) may continue to be relevant for the assessment of the ordinary residence for persons who are provided with social care under NAA 1948 until such time as they are passported further to an ad-hoc or annual care plan review on to social care provision under the Care Act 2014, which must be by 31 March 2016 in any event. 27. A person can only have one ordinary residence for the purposes of the Care Act 2014 (Statutory Guidance at paragraph 19.49). 28. The test to be applied is different according to whether or not the adult has capacity to determine where he wishes to live. Ordinary Residence: Adults with Capacity 29. For adults with capacity to determine where they wish to live the general principles were set out in R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309:

9 a. The words should be given their ordinary natural meaning. b. 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 of long duration. c. The residence must be voluntarily adopted. d. There must be a degree of settled purpose - the purpose of living where one does should have a sufficient degree of continuity to be properly described as settled. 30. When assessing ordinary residence decision makers should also take into account: a. Ordinary residence can be acquired as soon as a person moves into an area. b. P may own or have an interest to a property in another area. c. Temporary absences e.g. holidays, hospital visits and term time at college/university do not break the continuity of ordinary residence. Ordinary Residence: Adults Without Capacity 31. A person must be assumed to have capacity in relation to a particular issue or decision unless it is established that they lack capacity, see: 1(2) Mental Capacity Act For the purposes of ordinary residence, the relevant decision is a decision where to live. Where a person lacks capacity to make a decision where to live, the Shah test does not strictly apply, as that person is incapable of voluntarily adopting a place of ordinary residence. 32. Paragraph of the Statutory Guidance currently provides: In the case of a person whose parents are deceased, people who have become ordinarily resident in an area and then lost capacity or have limited contact with their parents, the approach known as Vale 2 is appropriate to determine ordinary residence. This involves considering a person s ordinary residence as if they had capacity. All the facts of the person s case must be considered, including physical

10 presence in a particular place and the nature and purpose of that presence but without requiring the person have voluntarily adopted the place of residence. 33. However the Statutory Guidance notes that at the time of publication the issue of ordinary residence was the subject of litigation, referring to the Cornwall case (see below). Currently, it is understood there are no plans to update the Guidance. The current law is set out in R (on the application of Cornwall Council) v Secretary of State for Health [2014] EWCA Civ 12 (permission to appeal to the Supreme Court has been granted), so the Statutory Guidance must be read subject to that decision and any appellate decision of the Supreme Court 34. The Court of Appeal in the Cornwall case held that local authorities should not apply what has become known as Test One or Vale 1 of the two tests set out in R v Waltham Forest London Borough Council, Ex p Vale The Times, 25 February 1985, in order to determine the ordinary residence of a person who lacks capacity to decide where to live. That test provided that where a person is so mentally handicapped as to be totally dependent upon a parent or guardian, the concept of her having an independent ordinary residence of her own which she has adopted voluntarily and for which she has a settled purpose does not arise. She is in the same position as a small child. Her ordinary residence is that of her parents because that is her base. 35. Test Two or Vale 2 in the Vale decision is the application of the ex p Nilish Shah test to persons without capacity applied without the element of voluntary adoption of the place of residence. The Statutory Guidance at paragraph advises local authorities to apply the Vale 2 test in order to determine ordinary residence. However, this was not specifically adopted as a proposition by the Court and local authorities should be wary of applying the Vale 2 test as if it is a rule of law.

11 36. The Court of Appeal in the Cornwall case held that local authorities should apply by analogy the test to determine the habitual residence of a child (see Elias LJ at paragraph 80). This test was set out in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1 by the Supreme Court 2. That test provides that a child s place of habitual residence is the place which reflects some degree of integration by the child into the social and family environment. 37. More recently, in An English Local Authority v SW, by her Litigation Friend, the Official Solicitor, A Scottish Local Authority, RP, LC [2014] EWCOP 43 the Court of Protection considered the habitual residence of an adult who lacked capacity. Judgment was handed down before the decision in Cornwall was published. The court held: a. Do not focus only on the degree of integration in a social and family environment. b. Take account of all the circumstances of fact specific to each individual case. The decision maker must make an overall assessment. c. Take account of the conditions and reasons for the stay, its duration, and other factors which make clear that the person's presence is not in any way temporary or intermittent. I.e. factors which go to whether the residence has acquired the necessary degree of stability. d. Recognize that a person might be not integrated at all in a family environment and only tenuously integrated in a social environment but still habitually resident in the country where they are living. e. Focus on the essentially factual and individual nature of the inquiry. 38. Pending further clarification by the Supreme Court in the Cornwall appeal, the principles to be applied by decision-makers should be as follows. Decision-makers 2 This has since been further considered in: LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1.

12 should undertake an overall assessment and focus on the facts of the case and relevant considerations will include: a. What is the centre or focus of the adult s social and family environment? b. What are the purposes and intentions of his parents? c. What is his actual place of residence? d. Where does he have a pattern of regular living? (If for example he has two homes) e. What emotional pull is greater - parents or carers? (If for example he has two homes) f. What is his state of mind (not wishes) as to his residence? g. How long has he lived there? h. Why does he live there? i. Is his residence there stable or intermittent and temporary? j. A lack of integration does not mean a lack of habitual residence. No Settled Residence 39. Consistently with the pre-care Act position, only in rare cases should a person be found to have no settled residence. Paragraphs and of the Statutory Guidance provide that a local authority may find a person has no settled residence where: a. They have clearly and intentionally left their previous residence and moved to stay elsewhere on a temporary basis during which time their circumstances change; and b. They have arrived from abroad including those people who are returning to England after a period of residing abroad and who have given up their previous home in this country

13 Deeming Provisions 40. When determining ordinary residence the Care Act 2014, like the NAA 1948 before it, includes deeming provisions (section 39), i.e. if an adult has needs which can only be met in a specified type of accommodation and he is living in that type of accommodation he will be treated as ordinarily resident in the area in which he lived before he began to live in that specific type of accommodation (or the first one if he has been in a series of specified accommodation). 41. For example, where a person who resides in the area of local authority A (and local authority A funds their care and support) enters a care home in the area of local authority B, their ordinary residence will remain with local authority A. Local authority A therefore retains responsibility for funding their care. They are considered ordinarily resident in the area of local authority A during their stay in the care home in local authority B. The broad effect of the deeming provision in relation to the provision of residential accommodation is the same as the pre-care Act position. However, the new deeming provision which is set out in section 39 is defined differently, and its application to residential care placements has been extended. 42. Section 39 of the Care Act 2014 provides: (1) Where an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in regulations, and the adult is living in accommodation in England of a type so specified, the adult is to be treated for the purposes of this Part as ordinarily resident (a) (b) in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations, or if the adult was of no settled residence immediately before the adult began to live in accommodation of a type so specified, in the area in which the adult was present at that time.

14 (2) Where, before beginning to live in his or her current accommodation, the adult was living in accommodation of a type so specified (whether or not of the same type as the current accommodation), the reference in subsection (1)(a) to when the adult began to live in accommodation of a type so specified is a reference to the beginning of the period during which the adult has been living in accommodation of one or more of the specified types for consecutive periods. (3) The regulations may make provision for determining for the purposes of subsection (1) whether an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in the regulations. (4) An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed; and for that purpose (a) local authority in England means a local authority for the purposes of this Part, and (b) local authority in Wales means a local authority for the purposes of the Social Services and Well-being (Wales) Act (5) An adult who is being provided with NHS accommodation is to be treated for the purposes of this Part as ordinarily resident (a) in the area in which the adult was ordinarily resident immediately before the accommodation was provided, or (b) if the adult was of no settled residence immediately before the accommodation was provided, in the area in which the adult was present at that time. (6) NHS accommodation means accommodation under (a) the National Health Service Act 2006, (b) the National Health Service (Wales) Act 2006, (c) (d) the National Health Service (Scotland) Act 1978, or Article 5(1) of the Health and Personal Social Services (Northern Ireland) Order The Secretary of State has made regulations: the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014/2828. They are not yet in force.

15 44. The three types of accommodation specified for the purposes of section 39(1) of the Care Act and identified in Regulation 2 of the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014/2828 are as follows. 45. Firstly, care home accommodation (see regulation 3 of the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014/2828). This is accommodation in a care home within the meaning given by section 3 of the Care Standards Act Secondly, shared lives scheme accommodation (see regulation 4 of the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014/2828). This is accommodation which is provided for an adult by a shared lives carer, and for this purpose shared lives carer means an individual who, under the terms of a shared lives agreement, provides, or intends to provide, personal care for adults together with, where necessary, accommodation in the individual's home; shared lives agreement means an agreement entered into between a person carrying on a shared lives scheme and an individual for the provision, by that individual, of personal care to an adult together with, where necessary, accommodation in the individual's home; and shared lives scheme means a scheme carried on (whether or not for profit) by a local authority or other person for the purposes of (a) recruiting and training shared lives

16 carers, (b) making arrangements for the placing of adults with shared lives carers, and (c) supporting and monitoring placements. 47. Thirdly, supported living accommodation (see regulation 5 of the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014/2828. This is defined as: a. 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; and b. accommodation which is provided (i) in premises which are intended for occupation by adults with needs for care and support (whether or not the premises are specifically designed or adapted for that purpose); and (ii) in circumstances in which personal care (which may be provided by a person other than the person who provides the accommodation) is available if required. Test of Needs Can Only Be Met 48. Section 39(1) (the deeming provision) only applies Where an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in regulations. 49. The Statutory Guidance provides at paragraph that need for a specific type of accommodation should be judged following the needs assessment and the following care and support planning process. It should therefore be recorded in the care and support plan that P has a need which can only be met in X type of accommodation.

17 50. The Statutory Guidance at paragraph states the local authority must have assessed the needs in order to make such a decision. The deeming provision does not therefore apply where a person arranges their own accommodation and the local authority does not meet their needs. 51. Further, the Statutory Guidance at paragraph states that the deeming provision applies not just when the local authority provides or arranges for accommodation directly but may also apply when P takes a direct payment and arranges their own care because in those circumstances the local authority is still meeting the adult s needs. 52. However, with direct payments P can choose how his needs are met: if the care plan stipulates that P s needs can only be met in specified accommodation and P arranges such accommodation then the deeming provision applies. But if P arranges accommodation outside that specified then the deeming provision does not apply. 53. As such, local authorities need to record carefully their decision on what type of accommodation is needed. For example if a person requests direct payments for supported living the direct payments will be for the care not the accommodation (usually) which will be paid for by housing benefits so it may not be clear at first glance what the decision as to type of accommodation was. Section 117 Mental Health Act Section 117(1) of the Mental Health Act 1983 ( MHA 1983 ) provides that after-care services shall be provided by health and social services to persons who have been detained under section 3 MHA 1983, or admitted to a hospital pursuant to a section 37 MHA 1983 hospital order or transferred to a hospital pursuant to a section 47 or section 48 MHA 1983 transfer direction and then cease to be detained and leave hospital.

18 55. It is a continuing duty until both health and social services are satisfied that P no longer has need of the services (section 117(2) MHA 1983). Ordinary Residence & Section 117 Mental Health Act 1983 Pre-Care Act 2014 position 56. The range of services which can be provided was not defined in the 1983 Act. It would normally include social work, support in employment, accommodation or family relationships, the provision of domiciliary services and the use of day care and residential facilities (Clunis v Camden and Islington Health Authority [1998] QB 978). 57. In R (Afework) v London Borough of Camden [2013] EWHC 1637 (Admin), Mostyn J had considered whether a mere roof over the head could, without more, fall within the definition, but decided that it could not. He considered that the link between the word after with care meant that the services in question must be consequential to the detention in hospital and relate to the reason for the detention in the hospital. Section 117 Mental Health Act 1983 ( MHA 1983 ) therefore only required accommodation to be provided where: (i) the need for accommodation is a direct result of the reason that the ex-patient was detained in the first place; (ii) the requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and (iii) the ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition. The judgment has been criticized for this judgment has been criticised for introducing the concept of incapacity to after-care (criterion (iii) above). Whether an after-care patient has or lacks capacity had not previously been identified as determinative of the kind of after-care services they should receive, see how this has been clarified below under the new law.

19 58. The position prior to the introduction of the Care Act 2014 is that the local authority responsible for section 117 after-care is the local authority in which the relevant person ( P ) is resident immediately before he is detained under MHA If, as a last resort and in a clear and extreme circumstance, P is not resident anywhere immediately before detention, then the local authority of the area that he is sent to on discharge is the responsible local authority. 60. This is as a result of the following. First, one applies section 117(3) MHA This provides that that the responsible social services authority is the social services authority for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained. 61. Secondly, the case of R v Mental Health Review Tribunal, Ex p Hall [2000] 1 WLR 1323 has made clear that the words 'or to which he is sent on discharge' referred to the fall-back position. The decision-maker has first to consider the primary criterion of the area in which the person is resident. Only if the conclusion on the facts is that P is not resident in any area does the fall-back position of the area to which he is sent on discharge apply. The court in R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232 made clear that: the case of no residence is a last resort, an ultimate default position, which should not be held to apply except in extreme and clear circumstances. 62. Thirdly, the case of R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council [2011] PTSR 1623; [2011] EWCA Civ 77 determined that when assessing where P is resident the period of detention under MHA 1983 is disregarded; the decision maker looks at where P resided immediately before he went into detention.

20 63. When determining residence prior to the implementation of the Care Act 2014, relevant factors included the following. First, the term resident in MHA 1983 is different from the term ordinary resident in the 1948 Act. Residence does not incorporate any of the legal ramifications of ordinary residence. In particular the deeming provisions that apply when considering ordinary residence and the effect on which local authority is responsible under the National Assistance Act 1948 do not apply, see: (R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council [2011] PTSR 1623; [2011] EWCA Civ 77). 64. Secondly, when determining residence as a matter of fact a helpful judicial observation to apply emerges from the case of Mohamed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547: the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into 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. 65. Thirdly, residence in a hospital where the person was voluntarily admitted can be residence within the meaning of section 117 in the case of prior voluntary admission to the same institution. The judge in the Sunderland case said. Of course there will be cases of voluntary admission which do not, on the facts, give rise to a shifting of the patient's residence from being the place where he or she was living previously to

21 admission to the hospital in question. That was the case here, since it is accepted that until 23 October 2009 SF remained resident at Westfield Hall. But once that accommodation ceased to be available for her, it does not seem to me that, on any applicable test for residence, she could be regarded as remaining resident there while SF was in [hospital] as a voluntary patient, she ceased to have any other place of residence available to her on 23 October 2009, so that there was from that date onwards no alternative to regarding her as resident in [hospital], unless she was to be seen as not resident anywhere. I agree with the judge that the case of no residence is a last resort, an ultimate default position, which should not be held to apply except in extreme and clear circumstances, which it is not necessary to define or even illustrate for the purposes of this appeal. 66. Fourthly, where P was subject to a hospital order with restrictions, pursuant to sections 37 and 41 MHA 1983, then conditionally discharged, recalled to hospital and conditionally discharged from hospital for a second time, he was, for the purposes of section 117(3) MHA 1983, still to be treated as being resident in the area of the same local authority as that in which he lived before the original hospital order was made. This is because the chain of causation from the first hospital order was never broken. 67. This is in contrast to the cases where: (i) P who was formerly subject to a hospital order has been granted an absolute discharge; and (ii) P, who has not been the subject of a hospital order by a criminal court is admitted compulsorily to a hospital under section 3 and then discharged. In these cases (depending on the facts) a new residence will form in the area P was discharged to. If P is later detained the local authority of that new area will be responsible for section 117 after-care.

22 Ordinary Residence & Section 117 Mental Health Act 1983 Post-Care Act 2014 position 68. The Care Act 2014 introduces for the first time a definition of after-care services in section 117(6) MHA After-care services must have both the purposes of meeting a need arising from or related to the person s mental disorder and reducing the risk of a deterioration of the person s mental condition and accordingly reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder (see also Statutory Guidance at paragraph 19.42). The new definition represents a modified version of the first two of Mostyn J s requirements in Afework and eliminates the third altogether, i.e. the controversial capacity element identified above at paragraph Section 75 of the Care Act 2014 amends section 117 MHA 1983 to provide that the local authority responsible for providing or commissioning after care services is the local authority in which the person was ordinarily resident immediately before he was detained. So far as is material, amended section 117 MHA 1983 provides: 117. After-care. (1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital. (2) It shall be the duty of the clinical commissioning group or Local Health Board and of the local social services authority to provide or arrange for the provision of, in co-operation with relevant voluntary agencies, aftercare services for any person to whom this section applies until such time as the clinical commissioning group or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a community patient while he remains such a patient.

23 [ ] (3) In this section the clinical commissioning group or Local Health Board means the clinical commissioning group or Local Health Board, and the local social services authority means the local social services authority (a) (b) (c) if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident; if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained. 70. Thus, the relevant local social services authority for the purposes of provision of aftercare services is determined by s.117(3) MHA Section 39(4) of the Care Act 2014 provides that an adult who is being provided with accommodation under section 117 (note the provision only applies to a person provided with accommodation under s.117) is to be treated for the purposes of Part 1 of the Care Act 2014 as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the section 117 after-care services lies. The first relevant question therefore for the social services authority, is: Which authority has a duty to provide after-care services under section 117 MHA 1983?. The answer to that question is determined by amended s.117, i.e. the local authority in which P was ordinarily resident immediately before he was detained. The effect of this provision is that if the after-care services under s.117 includes the provision of accommodation, P does not acquire the ordinary residence in the area in which he has been provided that accommodation, if different to his existing place of

24 ordinary residence. Thus if P is ordinarily resident in Local Authority A and is thereafter sectioned under section 3 MHA 1983 for a period of 2 months and then P is provided with accommodation under section 117 MHA 1983 in Local Authority B, it is Local Authority A who will have responsibility under the Care Act 2014 to meet the eligible assessed needs of P. 72. A further example illustrates the new law. P has complex mental health and social care needs. P is ordinarily resident in Local Authority A, and the social services team in Local Authority A are satisfied that P s needs can only be met in a shared lives scheme, and an appropriate scheme is identified in Local Authority B, where P goes to live. The application of the deeming provision under s.39(1) is that P is deemed to be ordinarily resident in Local Authority A for the purposes of Part 1 of the Care Act, notwithstanding that absent that deeming provision, he would have otherwise acquired (in the application of the principles of ordinary residence at common law) ordinary residence in Local Authority B. 73. A year after placement in Local Authority B, P is sectioned under s.3 MHA 1983 and is taken to a hospital in Local Authority C. Upon discharge, P is provided with accommodation under s.117 MHA 1983 after-care services in Local Authority C. For the purposes of amended s.117 MHA 1983, the responsible Local Authority is Local Authority B, because P was ordinarily resident in Local Authority B immediately prior to his detention. For the purposes of social care provision under the Care Act 2014, the responsible local authority is also Local Authority B, because of the operation of s.39(4) and the result of the relevant question: Which authority has a duty to provide aftercare services under section 117 MHA 1983? The answer is B. 74. As such, where accommodation under s.117 is provided, the local authority has to determine where P was ordinarily resident immediately before he was detained using

25 the principles set out above (the application of which will depend on whether the adult has or lacks capacity). 75. By new s.117a the Secretary of State is empowered to make Regulations requiring a local authority to comply with a preference by P for particular accommodation, with P paying a top-up fee if the preferred accommodation is more than the authority s usual cost. In discharging the s.117 duty, the Council is permitted to provide the person with direct payments. This brings the position into line with the current s.21 National Assistance Act 1948 and National Assistance (Choice of Accommodation) Directions 1992 and new regulations under the Care Act: The Care and Support and After-Care (Choice of Accommodation) Regulations NHS 76. Section 39 also provides that where a person goes into hospital or other NHS accommodation they are treated as being ordinarily resident in the area in which they were ordinarily resident before they entered NHS accommodation. 77. This includes NHS Continuing Care. Where an individual is eligible for NHS CHC, the relevant Clinical Commissioning Group (CCG) is responsible for care planning, commissioning health and care and support services, and for case management. This is the area in which P s GP is based. As such the CCG responsible for health needs and the local authority responsible for social care needs may be some distance apart and need to co-operate (Annex H5 of the Guidance). Transition from Children Act 1989 to Care Act When a young person with care and support needs reaches the age of 18 the responsibility for meeting his care and support needs transfers from the Children Act 1989 to the Care Act 2014 (subject to the leaving care provisions).

26 79. The care and support is provided by the local authority in which he is ordinarily resident as an adult. This may or may not be the same as the local authority he was ordinarily resident in as a child. Guidance is given in Annex H8 of the Guidance. 80. Local authorities should therefore start from the preliminary assumption that P remains ordinarily resident in the area he was ordinarily resident for the purposes of the 1989 Act the day before he turned Section 105(6) of the Children Act 1989 provides that when determining the OR of a child for any purpose of the Act any period in which the child lives in a school or other institution, pursuant to a supervision order under the 1989 Act or a youth rehabilitation order under Part 1 of the Criminal Justice Act 2008 or while he is being provided with accommodation by or on behalf of a local authority should be disregarded. 82. The local authority should then consider whether that preliminary assumption can be displaced on the facts of the case at the time when the child was under The local authority should (a) apply the A v A and re LC cases (set out above) to determine the actual ordinary residence of P on the day before he turned 18 and (b) assess whether that has changed when he became an adult under the ex p Shah test. 84. The local authority responsible for leaving care services will remain that in which P is ordinarily resident for the purposes of the Children Act A local authority has the power or duty to provide accommodation for a care leaver who is eligible for leaving care services under the leaving care provisions in certain

27 circumstances. These include vacation accommodation under section 24B Children Act 1989 if they are in full time further or higher education and their term time accommodation is not available and accommodation under section 24A(5) in exceptional circumstances. 86. Generally speaking a person who is eligible for accommodation under the Care Act 2014 will be provided with accommodation under that act and not under the Children Act. Urgent Needs 87. Sections 19(3) and (4) Care Act 2014 provide, as relevant, that a local authority may meet an adult's needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area). A local authority may meet an adult's needs under subsection (3) where, for example, the adult is terminally ill. 88. The Guidance at Annex H1 paragraph 2 provides that an urgent need for care and support may arise when a person is on holiday or visiting another area. The local authority in which the person is physically present should exercise their power to meet urgent needs. Prisoners 89. Whilst a person is in prison, they are ordinarily resident for the purposes of Part 1 of the Care Act 2014 in the area in which the prison is located: section 76(1). Therefore the local authority in whose area the prison is located assumes responsibility for meeting needs for care and support of the prisoners detained there. 90. However, the position changes once the prisoner leaves prison. Paragraph of the Statutory Guidance makes clear that the deeming provisions in section 39 CA 2014

28 do not apply to people leaving prison: therefore the newly-released prisoner s ordinary residence is not deemed to be the local authority area in which they resided before their imprisonment. The Statutory Guidance acknowledges that working out the ordinary residence of a newly-released prisoner is not straightforward (paragraphs ): for instance, it may not be possible for the offender to return to their previous area. Accordingly, the Statutory Guidance emphasises the importance of advance planning by, and co-operation among, the local authority/ies, the prison and probation services to ensure that a sustainable resettlement plan is worked out and it is clear which local authority assumes responsibility for meeting needs for care and support. Self-Funders 91. A person that self-funds and arranges their own care and choses to move to an area is likely to acquire the ordinary residence of the area he or she moves to. The Statutory Guidance at paragraph provides that people who self-fund and arrange their own care and choose to move to another area for that care and then find their funds depleted are likely to have the ordinary residence in the new area as they voluntarily choose to move there. The relevant case-law remains: R. (on the application of Greenwich LBC) v Secretary of State for Health [2006] EWHC 2576 (Admin). 92. A person that seeks the help of the local authority pursuant to section 18(3) CA 2014 i.e. a person who has sufficient financial means to pay for their own care, but who has eligible needs, and asks the local authority to meet their needs (e.g. where they lack the skill or confidence to arrange their own care). The person is paying for the accommodation but the local authority has arranged it and provided a care plan and so the deeming provision under section 39 will apply and P will keep the ordinary residence of the arranging local authority (Annex H4 of the Guidance).

29 93. Practitioners should notes that there is a forthcoming set of amending regulations under section 39(1) CA 2014, which will clarify that the deeming provision only applies where the adult is having needs met under Part 1 of the Act. This is to avoid a potential issue caused by the wording of the Act which may have applied the deeming provision to circumstances where a self-funder voluntarily arranged a care home in another area, and later falls on State support. Deferred payment agreements 94. Section 41(4) CA 2014 deals with the situation where a person enters into a deferred payment agreement with Local Authority A and it subsequently transpires that she was ordinarily resident in the area of Local Authority B. In such a case, Local Authority A may not recover from Local Authority B any payments made to meet that person s needs for care and support which are subject to the deferred payment agreement, unless Local Authority A agrees to assign (and Local Authority B agrees to assume) its rights and obligations under the deferred payment agreement. 95. There is no provision in the Statutory Guidance for dealing with the situation where a party to a deferred payment agreement acquires ordinary residence in another local authority s area. In principle, there is no obstacle to that person entering into another deferred payment agreement with the new local authority, assuming there is adequate security and the other requirements are satisfied. Paragraph 9.95 of the Statutory Guidance states that a deferred payment agreement may be terminated in three ways, all of which require repayment of the full amount to the local authority. Continuity of care 96. Sections CA 2014 create new legal duties requiring local authorities to work together where an adult or carer intends to move from one local authority s area to another. The sections set out clear steps both local authorities are required to take in

30 such a case, including information sharing, to ensure there are no interruptions in the provision of care and support services as a result of the move. 97. The CA 2014 and the Statutory Guidance anticipate the situation where an intended move to a new local authority area falls through and Local Authority B has spent money on either providing or preparing to provide care and support services. By section 38(7), Local Authority B may recover that money from Local Authority A. However, the Statutory Guidance suggests that the starting point should be that both authorities simply agree to take a haircut on any such costs (paragraph 20.49). If Local Authority B is seriously considering taking steps to recover the money, it should consider the culpability of Local Authority A, i.e. whether it knew that the person was not going to move and failed to notify Local Authority B or whether Local Authority A was unaware and therefore not able to notify (paragraph 20.50). Dispute Resolution 98. The Care Act 2014 provides a way by which local authorities may resolve disputes as to ordinary residence (and continuity of care). 99. Section 40 provides that is there is a dispute it is to be determined by the Secretary of State or a person he appoints for that purpose. It also provides for a review of the determination which must begin within 3 months of the original determination. The provision for review is new; it used to be the case that the Secretary of State was functus once a determination had been issued, and that the parties could only resort to judicial review in order to challenge the determination, even if both agreed material facts had been missed, or the law had been misstated. There is now some limited provision for review.

31 100. Section 41 of the Care Act provides that where a local authority has been meeting care and support needs but it transpires that another local authority was responsible as he was ordinarily resident elsewhere the local authority concerned may recover from the other local authority the amount of any payments it made towards meeting the needs in question at a time when the other local authority was instead liable to meet them. Note that this does not apply to deferred payments unless there is agreement or the meeting of needs under section 19 or 20(6) CA Regulation 2 of the Care and Support (Disputes Between Local Authorities) Regulations 2014/2829 provides (as relevant): a. local authorities 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. b. The local authority which is meeting the needs of the adult or carer on the date on which the dispute arises must continue to meet those needs until the dispute is resolved. c. If no local authority is meeting the needs on the date on which the dispute arises i ii the local authority in whose area the adult needing care is living; or if the adult needing care is not living in the area of any local authority, the local authority in whose area that adult is present, must, until the dispute is resolved, perform the duties under Part 1 of the Act in respect of the adult or carer as if the adult needing care was ordinarily resident in its area Regulations 3 and 4 provide for duties of co-operation, information sharing and referral for determination where there is a dispute. Regulation 7 provides for the

32 recovery of funds where a local authority has provided social care support to a person who is determined to have been the responsibility of another local authority. Transitional Provisions 103. The Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015 has been laid in draft before Parliament. By paragraphs 3(1) and 3(2) of the Order services can continue to be provided under s.21 NAA until a review is conducted and the services are determined to be provided under the CA or by 31 March 2016, whichever is sooner Paragraph 3(3) then provides that any provision that operates in relation to services given before 1 April 2015 (e.g. the s. 21 NAA 1948 service in this case) and pursuant to 3(1) & (2) (i.e. until review or 31 March 2016 whichever is earlier) will continue to have effect for the purposes of that support (subject to exceptions) This is consistent with: a. Section 39(1) Care Act 2014 deeming provision which refers to an adult is to be treated for the purposes of this Part as ordinarily resident. b. Section 40(1) Care Act 2014 refers to Any dispute about where an adult is ordinarily resident for the purposes of this Part. c. The regulations which define dispute as meaning a dispute about where a person is ordinarily resident for the purposes of Part 1 Care Act This is also consistent with the Statutory Guidance which suggests at paragraphs that passporting people into the new legislation should normally take place at the point of that regular review, when the authority satisfies itself that the needs are being met. To ensure that needs continue to be met between the Care Act coming into force and the point of review, existing legislation underpinning service provision will be

33 saved for a period of one year. This means that local authorities will be able to continue with existing arrangements pending the review, to manage capacity issues and to ensure that the review takes place at the right time for the person. However, local authorities must not use existing legislation to underpin care and support planning after April 2015 the purpose of this saving is only to continue existing provision until a review can take place, at which point the person would transfer under the provisions of the Care Act Further, the Statutory Guidance suggests at paragraph that any dispute regarding ordinary residence that occurs and is submitted before April 2015 is likely to be considered under the old regulations. We will set out more detail around this in transitional provisions to be published early next year. Further at paragraph 23.18, The extension of ordinary residence deeming principles to other types of accommodation provided in another authority s area (including shared lives and extra care housing) will be introduced from April 2015 and will not be retrospective. The transitional provisions have now been provided (in draft) are consistent with this guidance albeit they take it further, because it is not merely pre-april 2015 disputes which will be considered under the existing (old) regulations but disputes relating to persons whose care has not been passported to Care Act provision (until the long-stop date of 31 March 2016). Areas of Complexity / Uncertainty 108. One area where disputes and / or litigation will inevitably continue is the responsibility between local authorities and CCGs for the provision of care. Whilst local authorities must heed the warning of the Court of Appeal R. (on the application of Manchester City Council) v St Helens BC [2009] EWCA Civ 1348; [2010] P.T.S.R (it was not satisfactory when two publicly funded public authorities engaged in expensive litigation to decide which of them should pay for the care in the home of a woman

34 whose mental and psychological conditions required constant and expensive care when, in the end, the money for the care and the money for the litigation was all coming out of the same purse) it is unlikely that the duties of co-operation and integration, or indeed the welcome reconciliation of the law on after-care deeming provisions, will dilute the appetite of local authorities to scrutinize and if negotiate which public body has responsibility for large annual care plan costs. Indeed, the forthcoming changes in the law may trigger internal reviews of responsibility for existing care plans and generate disputes about responsibility for care packages, at least in the short term The introduction of the test in section 39(1) ( Where an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in regulations ) will generate debate. This is a significant change to the pre- Care Act position because it introduces what is essentially a social care judgment into the necessary conditions for the application of the deeming provision. Ultimately this is the judgment of a social care professional, but the consequences of, for example, a conclusion that an adult s needs could be met but not necessarily only be met in specified accommodation in a care plan (even if they were in fact subsequently met in specified accommodation) would be far-reaching, in terms of the operation of the deeming provision and responsibility for care. That raises the spectre of local authorities challenging earlier assessments in care plans, if the effect of those social care conclusions was to dis-apply the deeming provisions and to fix a different local authority with responsibility It had been widely understood that the deeming provisions in the MHA 1983 would be completely reconciled with the deeming provisions under the Care Act 2014 by the introduction of the term ordinary residence into s.117(3) MHA 1983, such that the same local authority would always be fixed with social care and after-care services

35 responsibility and it would reduce any incidences of transferring responsibility from one local authority to another through placing P out of area This has not happened. The phrase ordinary residence in the amended s. 117 MHA 1983 is to be given its ordinary natural meaning and, by itself, does not incorporate a deeming provision An example illustrates the above: P lives in Local Authority A. Applying the ordinary natural meaning of ordinarily resident (in line with Shah or Cornwall), P s place of ordinary residence is A. Local Authority A are satisfied that P s needs can only be met in a shared lives scheme, and an appropriate scheme is identified in Local Authority B, where P goes to live. As a result of section 39(1) of the CA 2014 Local Authority A is responsible for P s Care Act needs After 3 months P is detained pursuant to section 3 of the MHA On discharge he returns to live at his shared lives scheme placement in B (i.e. not accommodation provided as part of section 117 aftercare services). As a result of the amended s. 117 MHA 1983 Local Authority B, where P was ordinarily resident, is responsible for his section 117 MHA 1983 after care services. Local Authority A remains responsible for meeting any Care Act needs that do not fall within section 117 MHA 1983 after care services As such, the application of the deeming provision for social care under Part 1 of the Care Act 2014 by section 39(1) would not necessarily identify the same responsible Local Authority for the purposes of provision of social care as would the application of the deeming provision in s.117(3) MHA 1983 for the purposes of the provision of mental health after-care. By virtue of s.39(4), it is only inevitable the two Local Authorities will be the same, when accommodation is provided under a s.117 aftercare package and in those circumstances it is the responsible Local Authority under

36 s.117(3) MHA 1983 which will also be the Local Authority responsible for the provision of social care, whether or not that Local Authority would otherwise have been responsible for social care under the Care Act by the application of the other provisions of s.39, see the example given above in these notes. Local Authorities should therefore be careful not conflate the operation of the deeming provision under s.39(1) with the deeming provision under s.39(4) If the government had wished to completely reconcile the deeming provisions such that the same local authority was responsible for both meeting Care Act needs and providing s. 117 after care and reduce the incidence of dumping it ought to have amended s. 117 to read: (3) In this section the clinical commissioning group or Local Health Board means the clinical commissioning group or Local Health Board, and the local social services authority means the local social services authority (a) if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was deemed to be ordinarily resident for the purposes of Part 1 of the Care Act The definitions of specified accommodation under Regulations 4 (shared lives scheme) and 5 (supported living accommodation) of the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014/2828 are tolerably clear, but there may be cases where it is debatable whether the definitions capture the accommodation arrangements. Or indeed, where the ownership or management of the accommodation changes, there are disputes about whether the accommodation remains specified accommodation, triggering debates of a similar nature to those which arose under the law before the Care Act 2014 when a care home de-registered and the deeming provision was disapplied.

37 These materials are provided for educational purposes only. They do not constitute legal advice that is endorsed by DH/LGA/ADASS, nor are they a statement of policy. Importantly, these notes have been prepared before Parliament has indicated which provisions of the existing legislative framework have been repealed and without the benefit of transitional provisions. Nothing herein is intended or should be construed as legal advice. Should you require advice about the Care Act 2014 and its implications, please contact Cornerstone Barristers on practicemanagers@cornerstonebarristers.com