234 Joint response from the Association of Directors of Adult Social Services (ADASS) and the Local Government Association (LGA) to the Department of Health Ordinary Residence Guidance Consultation Background The Association of Directors of Adult Social Services (ADASS) represents Directors of Adult Social Services in Local Authorities in England. As well as having statutory responsibilities for the commissioning and provision of social care, ADASS members often also share a number of responsibilities for the commissioning and provision of housing, leisure, library, culture, arts and community services within their Councils. ADASS members are jointly responsible through the activities of their departments for the well-being, protection and care of their local communities and for the promotion of that well-being and protection through the use of direct services as well as the co-ordination of and liaison with the NHS, voluntary agencies, private companies and other public authorities. ADASS members have leadership responsibilities in Local Authorities to promote local access to services and to drive partnership working to deliver better outcomes for local populations. They participate in the planning of the full range of council services and influence Health Service planning through formal and informal Local Strategic Partnership arrangements. The Local Government Association (LGA) promotes better local government. It works with and for member authorities to realise a shared vision of local government that enables local people to shape a distinctive and better future for their locality and its communities. The LGA aims to put councils at the heart of the drive to improve public services and to work with government to ensure that the policy, legislative and financial context in which they operate, supports that objective. The 423 authorities who make up the Local Government Association cover every part of England and Wales. Together they represent over 50 million people and spend around 113 billion a year on local services. They include county councils, metropolitan district councils, English unitary authorities, London boroughs, shire district councils and Welsh unitary authorities, along with fire authorities, police authorities, national park authorities and passenger transport authorities. The LGA and ADASS welcome the opportunity to comment on this consultation. Introduction The approach taken in this response has been to begin by making general comments about the draft guidance document and then to answer the consultation questions. In answering the consultation questions we have suggested wording changes (shown as tracked changes for ease of identification) as well as pointing out the specific
areas we think need greater clarification for the guidance to achieve its aim of clarifying the rules on ordinary residence. If it would help to discuss any of the comments and suggested clarifications we have made, please do not hesitate to contact us. We will be happy to be involved in any further discussion on what we think is a very important policy area for local authorities General comments There are a number of examples of language and terminology within the document that we suggest should be changed, either for reasons of clarity or to be consistent with current social care terminology (particularly in the light of personalisation): There are occasions when the words service user are used. We suggest that these should be changed to individual or person. There are many examples of the use of words such as generally or likely which we believe make the guidance vague and actually have the effect of undermining it as a means of determining ordinary residence. We suggest that all such instances should be completely removed for the sake of clarity and ease of use or clear criteria outlined which describe the exceptions to the generally or likely rule. Comments on the appendices Appendix C addresses cross-border issues relating to England and Wales but is silent on cross-border issues between England and Scotland, Northern Ireland, the Channel Islands and the Isle of Man. From a Local Authority perspective this is an important omission and needs to be addressed. 1. Do you think the guidance sufficiently explains the legal framework on ordinary residence and how to identify a person s place of ordinary residence? a. The meaning of Ordinary Residence in the guidance is reasonably explained and has not really changed, although the description is more comprehensive and contains more examples than previously. b. Paragraph 8 in the section on Community Care Assessments mentions situations where people have firm plans to move to another local authority area. In addition to the example given (where a person has a job offer), we believe an offer of a university place should be added, as this is a common occurrence and an area of dispute between authorities that could be avoided, if clear guidance is given. Therefore we suggest that the first sentence should read: This pragmatic approach should also be taken in relation to people with firm plans to move to another local authority s area, for example, a person with a job offer or an offer of a university place who intends to take it up, subject to suitable community care services being available. c. In the section on Residential Services, although paragraph 11 mentions that Part 3 accommodation is not always provided in a registered care home, we
believe that there should be specific examples of cases where Section 21 services are provided outside a traditional care home setting. This is because it is an area that can be particularly confusing and may give rise to disputes, particularly in light of Putting People First and the Personalisation agenda. d. As alluded to in the general comments, all instances of service user should be changed to individual or similar. Therefore we suggest that paragraph 13 should begin: Secondly, where local authorities make arrangements for Part 3 accommodation to be provided by the private and voluntary sector, section 26(2) requires that they must also make arrangements to pay the care home and be reimbursed as necessary by the individual or for the individual to pay the care home but with the local authority remaining liable for any excess or unpaid fees. e. In the section on non-residential services, paragraph 15 should be altered to refer not just to domiciliary services but also other types of non-residential services. Thus, an alteration would be as follows: The power for local authorities to provide a range of non-residential community care services, such as support in the home or Shared Lives schemes, is found in section 29 of the 1948 Act. Directions issued by the Secretary of State 11 under section 29 of the 1948 Act impose a duty to provide community care services under section 29 where a person is ordinarily resident in the local authority s area and approve the provision of such services in other cases. They also approve the provision of certain other non-residential services. There is a power, but not a duty, to provide services under section 29 to persons in urgent need who are not ordinarily resident in a local authority s area. f. Within the section on the meaning of ordinary residence, we think an important addition to paragraph 21 would be to mention that ordinary residence is not retained in an area merely because of property ownership in that area. This is a common misconception and it would be very useful to clarify it. Paragraph 21 should therefore contain the following: Ordinary residence can be acquired as soon as a person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in, a property in another local authority area. g. We believe an example would be helpful in the section about having more than one ordinary residence, and therefore propose the following to immediately follow paragraph 25: An example would be where a disabled adult is at university but has to give up their right to accommodation during the summer break. During the academic year, they would be ordinarily resident in the local authority area of the university, but during the summer break they may become ordinarily resident in another local authority area e.g. when staying at their family home or living in an another area for the purposes of work.
h. Regarding the section on People who lack Mental Capacity, we think this section should begin by mentioning the relevant legislation and reference the section on the Deprivation of Liberty Safeguards (paragraphs 133-141) in Part 3 of this draft guidance as follows: All issues relating to Mental Capacity should be determined in compliance with the Mental Capacity Act 2005; see also the section The Mental Capacity Act 2005 Deprivation of Liberty Safeguards. i. While this section does go on to set out some of the key considerations that need to be taken into account in relation to the Mental Capacity Act (in paragraph 26), it fails to mention that practitioners should have regard to all of the relevant legislation. Specifically, it fails to mention the need to instruct an Independent Mental Capacity Advocate (IMCA) for people who lack the mental capacity to decide where to live and are unbefriended, and omits the time-specificity of the test for capacity. A proposed change to paragraph 27 to correct the latter issue is therefore: The test for capacity is specific to each decision at the time it needs to be made, and a person may be capable of making some decisions but not others. Prefacing this section with the references to the MCA and part 3 of the consultation guidance should also remedy the lack of references to IMCAs. j. Regarding unlawful residence, we accept the assertion in paragraph 33 that the entitlement of overseas visitors is outside the scope of the guidance. Notwithstanding this, however, it would be helpful if the guidance advised practitioners to seek legal advice or referred them to case law or any available guidance on this issue. k. Within the section on the deeming provision of section 24(5) of the 1948 Act, we think that there should be a stronger requirement for local authorities to inform the host authority when making out of area placements. Therefore the first sentence of paragraph 56 should be amended as follows: If a local authority places someone out of area, in either private or voluntary sector accommodation, they must always inform the host authority of the placement. l. Another useful addition to paragraph 56 would be to append the following as a final sentence: This will be particularly important in the context of cross-border arrangements m. Following on from this, in the section on the deeming provision of 24(6), paragraph 61 mentions the extension of 24(6) through section 148(1) of the Health and Social Care Act 2008. The extension of this deeming provision was introduced for reasons of legislative simplicity. We are of the view that this is not consistent with person-centred approaches under the personalisation agenda; neither is it consistent with the responsible commissioner guidance (see Part 4 of this ordinary residence guidance), which is also relevant in this area. We believe that further discussion and serious consideration ought to be given to the practical implications of
implementing section 148(1) of the Health and Social Care Act 2008. ADASS and LGA representatives would ask that they be involved in any discussion around this. n. Finally, regarding the section on section 32(3) of the 1948 Act, we think that there should be provision to allow for local authorities to agree to suspend the referral to the Secretary of State for an agreed period where both authorities agree in writing that there is a realistic possibility that they will be able to resolve the dispute locally. A logical place to add this provision would be after paragraph 67. 2. Does this section of the guidance identify the main problem areas for local authorities? a. We think that in the section on people self-funding their care it would be helpful, within or just after paragraph 70, to point out the distinction between the concept of need in relation to the provision of part 3 accommodation and that of a person who may be about to be in need in relation to community care assessment. In other words the guidance should give an example of an individual who is moving from local authority A to local authority B and is likely to have need of support in the near future (they will be entitled to an assessment in authority B). b. Furthermore, paragraph 72 would be much clearer if the word order was changed as follows: Sometimes, a person with sufficient funds to pay for their care may not be able to enter into a private agreement with their care home for the provision of their care, perhaps because they do not have the ability or mental capacity to do so. The deeming provision in section 24(5) of the 1948 Act would apply and the person would remain ordinarily resident with their home local authority, even where they were placed in accommodation in another local authority area. In this case, the home local authority would be responsible for the provision of their accommodation under Part 3 of the 1948 Act, with reimbursement from the person as necessary 25. c. Paragraph 86 of the section on deferred payments begins by mentioning that individuals who are to become permanent residents should be made aware of the possibility of entering into a deferred payments agreement. In keeping with this, we think the wording in the subsequent sentences should be altered accordingly, thus: Although local authorities have discretion as to whether or not to provide deferred payments in individual cases, they should always ensure that individuals who are to become permanent residents are made aware of the possibility of entering into a deferred payments agreement 29 30.Information about Deferred Payment Agreements should be offered at the time the person decides to enter residential accommodation or, where a person is initially accommodated under the 12 week property disregard, during this 12 week period at the latest. It is good practice for local authorities to record that information
about deferred payment agreements were offered, whether an application was made and whether they were accepted or rejected d. Consequently, the last paragraph in the scenario that accompanies this section should also be altered: If local authority A had failed to offer Robert information about deferred payments during the 12 week disregard period it would be local authority A to which Robert should turn to discuss a deferred payment. It was established in the Greenwich case that if arrangements should have been made under section 21 of the 1948 Act but were not, then the deeming provision in section 24(5) should be applied as if the arrangements had been made. In this case, if the information had not been given, Robert would not have had the opportunity to apply for a deferred payment and possibly be provided with Part 3 accommodation by local authority A. Local authority A s failure to make the information available means that they would have remained the authority responsible for Robert. e. Paragraph 99, in the section on people leaving prison, resettlement units and other similar establishments, should be altered slightly for clarity, as follows: Where a person requires Part 3 accommodation on release from prison, local authorities could start from a presumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence. We also believe it would be helpful to have cases which illustrate this point f. We think that paragraph 106, in the section on NHS Continuing Healthcare, should be altered to reflect that the duty to assess falls to a local authority before any resulting duty to provide services: However, if a care review subsequently determines that a person s needs no longer meet the eligibility criteria for NHS Continuing Healthcare - perhaps because they needed intensive health and social care following an operation and they have now recovered - the NHS ceases to be responsible for the provision of the person s social care. Instead, a duty to assess for the provision of community care services falls to the local authority in which the person is ordinarily resident should they be assessed as being entitled to services under Part 3 of the 1948 Act. g. Regarding paragraph 107, referring to the amendment to the deeming provisions we would refer you to our comments at 1(l) above. We are of the view that this is amendment is not consistent with person-centred approaches under the personalisation agenda; neither is it consistent with the responsible commissioner guidance (see Part 4 of this ordinary residence guidance) which is also relevant in this area. We believe that further discussion and serious consideration ought to be given to the practical implications of implementing section 148(1) of the Health and Social Care Act 2008. ADASS and LGA representatives would ask that they be involved in any discussion around this.
h. In the section on Shared Lives Schemes, paragraph 109 should have the following appended to it: In line with the personalisation agenda, it is expected that organisations or local authorities operating shared lives schemes should provide open access to people wishing to move into their schemes from out of area. Such people will become ordinarily resident in that area, and consequently the financial responsibility of that local authority; Operators of Shared Lives Schemes should not discriminate against individuals moving into shared lives schemes from out of area on the grounds of funding responsibility. i. Later on in this same section, paragraph 113 would benefit from some slight clarification: If a local authority makes accommodation arrangements that include personal care for a person under the shared lives scheme to meet an assessed social care need, such short-term arrangements would generally be made under section 21 of the 1948 Act, in which case the section 24(5) deeming provision would apply (see paragraphs 9-14 for more information on residential accommodation under section 21 of the 1948 Act). j. Under the heading of Young People in transition from children s services to adult services, our view is that paragraph 114 is very unclear and requires much clarification, particularly regarding the eligibility for aftercare services under the legislation. Aftercare services primarily relate to entitlement under the children and care leavers legislation and may be distinct from ordinary residence issues. These are examples of where the guidance needs to be clarified: A young disabled adult entitled to aftercare services under Children s legislation who also has community care needs living either in or out of area. Clarity is needed regarding who is the responsible local authority for community care provision A young disabled adult entitled to aftercare services under Children s legislation is at university but has to give up their right to accommodation during the summer break and either stays in the university area or goes to a different local authority or the originating authority. Clarity is needed regarding who is the responsible local authority for community care provision k. There should be an additional paragraph reminding local authorities of their duties to young adults moving out of their area, including young adults entitled to aftercare services under Children s legislation that leave their responsible authority area but do not attend education or training. This is relevant where the young adult also has community care needs. l. A general point about this section is that the intention of revising the existing guidance is to bring greater clarity. However we are concerned that the draft wording in paragraphs 114-119 fails to do this. These paragraphs need to be consistent with the specific criteria set out in the relevant legislation, recent case law and the specific needs of the young adult. It is believed that if the examples given for paragraph 114 above are further clarified this will go a long way to improving this section.
m. Further to this, we think the scenario given could be improved significantly, and suggested amendments are as follows: Now that Sunil is 21, he is ready to leave college. His needs are reassessed and it is decided that he should remain living in residential accommodation. As Sunil has capacity to make some decisions for himself, he is able to express a desire to remain living in local authority B, near his friends from college and within the local community to which he feels he belongs. Therefore, at the end of the college year he requires residential care in local authority B and therefore his accommodation would change from being provided under the 1989 Act to being provided under Part 3 of the 1948 Act. In these circumstances, Sunil s ordinary residence falls to be determined under the 1948 Act. The fact that Sunil has been ordinarily resident in local authority A under the 1989 Act does not mean he automatically retains his ordinary residence there as an adult under the 1948 Act, although it can be a starting presumption. The provisions for determining ordinary residence under the 1989 Act apply only to the 1989 Act. Therefore once Sunil begins receiving services under the 1948 Act, his ordinary residence falls to be determined under this Act. At this point, local authority B falls into dispute with local authority A over Sunil s ordinary residence. Local authority B s view is that Sunil should remain the responsibility of local authority A. However, local authority A argue that their duty to Sunil ended when he left college and that he has become ordinarily resident in local authority B. As Sunil is being provided with Part 3 accommodation, section 24(5) of the 1948 Act applies and Sunil is deemed to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him. Immediately before Sunil entered residential accommodation under the 1948 Act, he was living in local authority B where he had been living for 6 years and where he has expressed a wish to remain. Therefore, in line with the settled purpose test set out in the Shah case, it s likely that Sunil would be found to be ordinarily resident in local authority B. Local authority B will therefore be responsible for carrying out a community care assessment and making subsequent provision of residential care. n. In addition to the example given, we also think that it would be useful to have other scenarios explored, namely: If Sunil lacked Mental Capacity If he was moving into community-based accommodation, e.g. supported living. 3. Does the guidance contain enough information on how ordinary residence applies to the Mental Capacity Act 2005 Deprivation of Liberty Safeguards and the Community Care (Delayed Discharges etc.) Act 2003?
a. This section essentially states the guidance, which has already been issued on Deprivation of Liberty Safeguards in relation to Ordinary Residence and therefore is sufficient.. 4. Are there other areas of legislation or guidance that it would be helpful to include? a. In part 4, paragraph 145 needs a clarifying addition: Section 117 of the 1983 Act sets out that the duty falls on the authorities for the area in which the person concerned is resident or to which the person is sent on discharge by the hospital in which the person was detained. However, if no such residence can be established, the duty falls on the authority where the person is to go on discharge from hospital. b. A general comment regarding the whole section on aftercare services under s.117 is that, although we recognise that this is a complex policy area, we are not confident that paragraphs 144-150 bring the level of clarity the Department intends with this guidance. 5. Do you think the Directions adequately instruct local authorities as to the steps they need to take to resolve disputes at a local level? Do you think the Directions adequately set out the documentation that should be submitted to the Secretary of State? The directions set out the stage at which a dispute must be referred to the Secretary of State for a determination to be made. Is 3 months an appropriate timeframe in which to expect local authorities to resolve the dispute locally? Or would a 6 month timeframe be more appropriate? a. We believe that, although more time may be helpful in allowing us to resolve disputes locally, the timeframe should remain at 3 months for the sake of the individual whom the dispute concerns. b. Paragraph 155 is silent on cross-border issues between England and Scotland, Northern Ireland, the Channel Islands and the Isle of Man. c. A useful addition to paragraph 162 would be: If a determination by the Secretary of State subsequently finds another local authority to be the authority of ordinary residence, the local authority that has been providing accommodation and/or services during the period of dispute can recover full costs from the responsible authority under section 32(1) of the 1948 Act, regulation 18(4) of the Delayed Discharges (England) Regulations 2003 or regulation 19(6A) of the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 48. The effective date shall be the date that the responsible authority was first notified, or the date the costs were actually incurred, whichever is the later. In this context, full costs
mean the actual costs (net of any assessed charge) incurred in providing the accommodation and any associated costs, save assessment and care management costs. d. This reference should be made again in paragraph 163, hence the following should be appended to it: Where a cross-border dispute is resolved, the same principles for the recovery of costs between parties, as outlined in paragraph 162, should be applied. e. In Annex B (Directions 2009) section 1(2) defines local authority of the moment differently to other definitions found in the document. Paragraph 160 of the guidance and section 2(4) of the Directions define local authority of the moment in the correct manner, and this paragraph (1(2)) needs to be amended to be consistent with those other references to the term in the document. f. We think section 5 of Annex B (Documents to be sent with referral to Secretary of State) should be strengthened. Therefore at the end of 5(1) the following should be inserted: Failure to comply, without good cause, with the requirements set out in section 5(1) (the 28 day timeframe) will lead to the Secretary of State progressing to a determination of the dispute without the opportunity for the defaulting authority to make further representations. g. Regarding Annex C, we remain concerned about the lack of clarity around dispute resolution with Scottish authorities as the combined effect of Section 56 of the Health and Social Care Act 2001 and the Community Care and Health (Scotland) Act 2002), which allows for such arrangements to be made in Scotland, Northern Ireland, Channel Islands and the Isle of Man. (The provisions in the existing LAC (93)18 sets out the options available to respective Scottish and English authorities, but does not refer to ordinary residence. h. To clarify the position in England and in Wales, we suggest the following additions to paragraphs 5 and 6 of Annex C respectively: 5. The Secretary of State will determine cross-border ordinary residence disputes where the person to whom the dispute relates is residing in England at the time the dispute is referred. The Secretary of State s determination shall be based on the ordinary residence guidance that applies in England. 6. The Welsh Ministers will determine cross-border ordinary residence disputes where the person to whom the dispute relates is residing in Wales at the time the dispute is referred. The Welsh Ministers determination shall be based on the ordinary residence guidance that applies in Wales.
Councillor David Rogers OBE Chair LGA Community Wellbeing Board Jenny Owen President ADASS Oliver Mills ADASS Ordinary Residence Lead