Ordinary Residence
Amendment
In June 2024, Section 3, Situations when a person will be receiving Care and Support under the Care Act in one Local Authority but be ordinary resident in another was updated to clarify that Extra Care Housing is specified accommodation.
There is no definition of ordinary residence in the Care Act or any other legislation. The statutory guidance states that the natural meaning of the term should apply, as used in the Shah case 1983;
"ordinary residence 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 long duration".
Ordinary residence status is therefore about the quality and nature of the connection that the person themselves perceives to have with an area, as opposed to the application of set criteria such as how long they have been living there or whether they own a property. In fact, a person can be ordinary resident in one place and still own property or have interests in another, so long as they consider the area in which they are claiming ordinary residence in as their settled abode at that point in time.
Ordinary residence is important because the Local Authority where the person is ordinarily resident has responsibility under the Care Act for meeting any eligible needs for Care and Support they may have or for providing aftercare services under s. 117 of the Mental Health Act 1983.
For further guidance see: Annex H of the Care and Support Statutory Guidance.
Under the Care Act, Ordinary Residence must be established before any eligible needs are met. The Local Authority has a duty to meet the eligible needs of a person that is ordinarily resident in its area or who is of no settled residence and is present in its area.
In practice, most Local Authorities will try to establish ordinary residence before carrying out an assessment, so that the assessment is carried out by the Local Authority that will subsequently be responsible for meeting eligible needs. However, an assessment cannot be declined on the basis that a person or carer is not ordinarily resident in the Local Authority area. The only basis upon which an assessment can be declined is no appearance of need.
If an assessment is carried out with a person who is subsequently found to be ordinarily resident in another Local Authority area, the Local Authority in the area in which they are ordinarily resident should have regard to the outcome of the assessment that has already been completed. This means that the person should not have to undergo another assessment process without good reason and that through effective information sharing and co-operation, the Care and Support Planning process can be completed based on the assessment undertaken by the first Authority.
Section 39 of the Care Act sets out specific accommodation types and if a person is placed into any of those accommodation types in another area, they are treated as being ordinarily resident in the placing authority. These are:
- A residential or nursing home;
- A hospital;
- A Shared Lives scheme; or
- A Supported Living Scheme (including Extra Care).
People can be residing in the listed accommodation in another area because:
- The Local Authority deems it crucial to promoting their Wellbeing; or
- The Local Authority is not able to provide appropriate services locally; or
- The person has chosen the accommodation under the Care and Support and After-care (Choice of Accommodation) Regulations 2014.
Local authorities have powers in the Care Act to meet the needs of people who are known to be ordinarily resident in another area, at their discretion and subject to notifying the authority where the person is ordinarily resident. Costs incurred by the Local Authority can be reclaimed from the Local Authority where the person is ordinarily resident.
Statutory guidance is clear that the determination of ordinary residence must not delay the process of meeting eligible needs. In cases where ordinary residence is not certain or is being contested, the Local Authority should meet the person or carers eligible needs first, and then resolve the question of ordinary residence afterwards.
If a person lacks capacity the following should be considered first:
- Are they staying in a regulated care provision as set out in Section 39 of the Care Act? If they are then they remain ordinarily resident in the Local Authority that placed them.
If the person is not staying in regulated accommodation, or intends to leave regulated accommodation the following should be considered:
- Their connections to the area (family, friends, work, education and professional support networks); and
- The purpose of them living or moving there.
Because the person is deemed to lack capacity the question of whether the person has 'voluntarily adopted' the place of residence should not be considered.
People who are homeless will not have a settled residence. Where a person intentionally moved from their previous settled residence and is staying elsewhere on a short – term, temporary basis they can be described as having no settled residence. However, if the temporary residence is of a sufficiently stable nature, the person may well be ordinarily resident in the temporary location for the duration of their stay.
Sections 18 and 20 of the Care Act make clear that the Local Authority has a duty to meet the eligible needs of people if they are present in its area but of no settled residence.
If the young person wishes to remain living in the Local Authority area in which they were placed under the Children Act 1989 you should first consider:
- Do they have Care and Support needs under the Care Act. If they do not have Care and Support needs and are able to decide where to live they can claim ordinary residence in that area.
If the young person has Care and Support needs under the Care Act:
- Are they staying in a regulated care provision as set out in Section 39 of the Care Act? If so, they remain ordinarily resident in the Local Authority that placed them.
If the young person is not staying in regulated accommodation, or intends to leave regulated accommodation the following should be considered:
- Their connections to the area (family, friends, work, education and professional support networks); and
- The purpose of them living or moving there.
If the young person has capacity to choose where to live consideration must also be given as to whether they have voluntarily decided to stay in the area. If the young person lacks capacity this should not be considered.
Until such a person has acquired a settled abode the Care Act guidance states that a logical conclusion for the Local Authority is to treat them as a person of no settled residence.
Under the Care Act, ordinary residence is not affected by hospital admission or any other NHS accommodation (unless a person has capacity and intends to reside in the area where the NHS accommodation is post admission). This means that the person is treated as being ordinarily resident in the Local Authority in which they lived prior to admission. This also includes hospitals and NHS accommodation in Wales, Scotland and Northern Ireland.
This applies regardless of the length of time that the person will be in the NHS accommodation, the nature and complexity of their eligible needs prior to admission or the nature and complexity of any need for Care and Support they may require after admission.
Where a person is admitted into NHS accommodation some distance from the Local Authority in which they are ordinary resident, it may be difficult practically for the Authority to visit the person in order to complete an assessment. In this situation the Care Act makes provision under the general principle of co-operation for the geographically closer Local Authority to be delegated tasks to support the statutory function of the Local Authority in which the person is ordinarily resident (for example gathering information to support assessment and Care and Support Planning). However, the Local Authority where the person is treated as being ordinarily resident remains responsible for funding.
Under Section 117(3) of the Mental Health Act 1983, the responsible Integrated Care Board (ICB) and Local Authority are those in the geographical area in which the person was considered ordinarily resident immediately before being detained.
Ordinary residence should be assessed in the same way as for any other person in need of Care and Support from the local authority unless, at the point of detention, the person was already in receipt of aftercare services arranged by another local authority area. If this is the case, see below.
In August 2023, the Supreme Court ruled on an ordinary residence dispute between Worcestershire County Council and the Secretary of State for Health and Social Care (referred to as the Worcestershire case).
When the person was first admitted for treatment under the Mental Health Act 1983, they had been ordinarily resident in Worcestershire. In line with Section 117(3), when they were discharged, Worcestershire County Council assumed responsibility for their Section 117 Aftercare.
Worcestershire arranged and funded Aftercare services in a care home close to family that was geographically located in Swindon.
A year later, the person’s mental health deteriorated, and they were readmitted to hospital for treatment. The dispute arose at the point when they were discharged from this second admission as Worcestershire County Council were of the view that responsibility for their Section 117 Aftercare now lay with Swindon Borough Council.
The Supreme Court agreed with Worcestershire on the following basis:
- When a person is provided with Section 117 Aftercare services in another geographical area, their ordinary residence changes in line with its natural meaning (explained in Section 1 above);
- If the person is subsequently compulsorily detained for further treatment in hospital (under Section 3 of the Mental Health Act 1983), the duty placed upon the original Integrated Care Board and Local Authority area to provide Section 117 Aftercare ends (because, as they are detained, the person is no longer in need of aftercare services);
- When the person is discharged from hospital the second time, at the point of discharge a new duty to provide Section 117 Aftercare arises. This has no relation to any previous duty that applied prior to their readmission. The new duty applies to the Integrated Care Board and Local Authority in which the person was ordinarily resident immediately prior to their second admission.
In light of this ruling, it is anticipated that the government will provide updated guidance but, until then, legal advice should be sought when there is any doubt.
Under the Care Act temporary or accidental absences from an area where the person is normally ordinarily resident do not usually alter the person's status of ordinary residence in that area. Examples of temporary absences include:
- Holidays;
- Family visits; and
- Hospital stays.
The fact that the person may be temporarily away from the Local Authority in which they are ordinarily resident, does not prevent them from receiving any type of Care and Support from another Local Authority if they become in urgent need. Local authorities have powers in the Care Act to meet the needs of people who are known to be ordinarily resident in another area, at their discretion and subject to their informing the authority where the person is ordinarily resident. Costs incurred by the Local Authority can be reclaimed from the Local Authority where the person is ordinarily resident.
In general terms it may be possible for a person to have more than one place they call home in more than one Local Authority area. However, the Care Act does not permit or make provision for a person to be ordinarily resident in more than one area at any one time. The purpose of the ordinary residence test is to establish which single Local Authority is responsible for meeting a person's eligible needs so as to avoid potential conflicts or confusion-it would not be practical or possible for such a responsibility to be shared.
If a person therefore appears to divide their time equally between 2 homes (for example a University student who lives in rented student accommodation during term time in a Local Authority area that is not the same as their family home area), it is necessary under the Care Act to establish to which of the 2 homes the person has the stronger link. When established it would be the responsibility of the Local Authority in whose area the person is deemed ordinarily resident to provide or arrange Care and Support to meet the person's needs during the time the person is temporarily away at their second home.
Unless the Local Authority has placed them into one of the specific accommodation types under Section 39, people who fund their own Care and Support (self-funders) and who subsequently choose to move to another Local Authority area become ordinarily resident in the new area. If they find that their funds have depleted after moving, they need to apply to the new Local Authority area that they have moved to in order to have their needs assessed. If it is decided that they have eligible needs for Care and Support, the person's ordinary residence will be in the place where they moved to and not the first Local Authority.
If the Local Authority has placed a self-funder into one of the specified accommodation types, the person will be treated as being an ordinary resident in the first Local Authority. This will be the case even if that Local Authority subsequently moves them into specified accommodation in another Local Authority area.
As already described, there are circumstances where a Local Authority in whose area a person is not ordinarily resident finds itself making arrangements for and paying for support and services to meet eligible needs. This can be apparent at the outset (for example in urgent situations where a person is temporarily away from home when the need develops), or it can established later, where information comes to light that the person was actually resident in another area. In each circumstance the Local Authority that has been paying for the person's care may reclaim the costs from the Local Authority where the person is ordinarily resident. This also applies to support provided to a carer.
Regardless of where the carer themselves lives, for the purposes of Support under the Care Act the carer is treated as being ordinarily resident in the Local Authority area in which the person they provide Care and Support for lives. This means that a Local Authority could find itself meeting the Support needs of a carer who does not live in its area.
Where a carer is supporting more than one person in more than one Local Authority area the Care Act guidance stipulates that the various Local Authorities responsible should communicate and co-operate with each other in deciding who is best placed to assess and meet any Support needs the carer may have. Co-operation is one of the general principles of the Care Act and is a statutory requirement. Additionally, the Act provides all the necessary powers to allow for joint assessments and joint support planning, with the onus being on local authorities to make sure they have the mechanisms in place to work together effectively.
The carer should not have to engage in separate Assessment, Support Planning or Review processes in relation to the caring role they have simply because the local authorities involved have failed to communicate or do not have effective mechanisms in place to work together or share information.
Potential outcomes of co-operation could be:
- An agreement where one Local Authority arranges all of the Support and services the carer needs but is reimbursed by another Authority so that the cost is shared;
- An agreement where each Local Authority assumes a different role in the process of assessment, support planning or review so as to evenly distribute their resources;
- An agreement where one Local Authority agrees to undertake any reviews due to being located nearest to the carers home;
- An agreement to complete joint assessment, support planning and review processes.
The Care Act anticipates that on the whole determining ordinary residence should be straight forward (so long as one Local Authority agrees the person to be ordinary resident in their area and has made the necessary arrangements to meet their eligible needs there is no matter to be resolved). Sometimes the person may not be in agreement with the decision made and can challenge this with the local authorities involved. The final decision rests with those local authorities.
When 2 or more local authorities dispute the ordinary residence of a person the Care and Support (Disputes between Local Authorities) Regulations 2014 sets out the clear process to be followed;
Step 1: First and foremost the law is clear that the person affected by the dispute (and any carer) must not go without the Care and Support (or Support) they need. If the needs are already being met by a Local Authority, this Local Authority must continue to meet the needs until the dispute is resolved. If the needs are not yet being met then the Local Authority where the person is physically present must accept responsibility until the matter is resolved. The Local Authority meeting the interim needs in either of these cases is known as the 'Lead Authority'.
Step 2: The authorities must communicate with each other (and the person/carer) and take all reasonable steps themselves to resolve the dispute, including seeking their own legal advice.
Step 3: If the dispute cannot be resolved by step 2 the Lead Authority should apply to the Secretary of State for a determination, providing evidence as specified in the 2014 Regulations (which includes statements clarifying the views of the different authorities).
Step 4: The Secretary of State (or appointed person) will consider the evidence, request any further information it requires and make a determination on the ordinary residence of the person.
Step 5: The Local Authority where the person has been determined as being ordinary resident should make arrangements to continue or assume responsibility for meeting the needs of the person. If the Local Authority does not agree with the determination and has further evidence to support this view, a request can be made to review the determination within 3 months. However, failure to give regard to the determination is likely to lead to legal proceedings.
If a Local Authority has provided Care and Support to a person who is ordinarily resident in the area of another Local Authority, it may recover the cost from the responsible authority. This applies whether or not there has been a determination by the Secretary of State (or appointed person).
Last Updated: February 12, 2024
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