15.1Residence in community care: overview
This chapter considers the issue of how a person’s residence can affect the obligations of both local social services authorities and the NHS.
The question of a person’s ordinary residence is a recurring one in community care – in both social and health care. The reason for this is that various duties are conditional on a person being an ordinary resident within the area of a local authority or NHS primary care trust; and the resource implications might be considerable. Ordinary residence is yet one more escape route, referred to in Chapter 3, away from unwanted obligations and expenditure. Department of Health guidance makes clear that any such disputes should not be to the detriment of the service user caught in the cross fire.
Local authorities have long since engaged with one another in frequent and sometimes lengthy disputes, particularly about the ordinary residence of people being placed in residential accommodation under s.21 of the National Assistance Act 1948. And, as the NHS becomes more fragmented, with NHS providers urged to compete with each other, it would appear that disputes about residence and the ‘responsible commissioner’ are becoming more prevalent.
15.1 RESIDENCE IN COMMUNITY CARE: OVERVIEW
Some local authority obligations to provide community care services (both residential and non-residential) depend on whether a person is ‘ordinarily resident’ in the authority’s area. In some cases, a duty is converted to a mere power, if the person in question is not ordinarily resident; in others, absent the duty, and there is not even a power.
Should a dispute arise between local authorities about where a person really lives, Department of Health guidance makes it clear that assessment and service provision should anyway not be delayed or prevented. The decision, about which authority is responsible for arranging and paying for services, should be made subsequently.
If a person has housing and health care needs as well, there is scope for uncertainty because social services, housing and NHS rules for residence and responsibility differ.
15.2 ORDINARY RESIDENCE: SOCIAL SERVICES
A number of rules, both legislative and at common law, bear upon where a person is deemed to be legally ordinarily resident, for social services purposes.
15.2.1 COMMUNITY CARE LEGISLATION AFFECTED BY ORDINARY RESIDENCE
Community care legislation affected by the ordinary residence condition comprises the National Assistance Act 1948 (s.21: provision of residential accommodation and s.29: welfare services) and the Chronically Sick and Disabled Persons Act 1970 (s.2: welfare services).
For instance, what might be a duty towards an ‘ordinary resident’ to arrange a care home placement might be a power only towards a non-resident of the area, under s.21 of the National Assistance Act 1948 and directions made under it (see 9.3.1). Under s.29 of the 1948 Act, a general duty to provide certain services for disabled people is rendered a power only in the case of those not ordinarily resident (see 11.1). And s.2 of the Chronically Sick and Disabled Persons Act 1970 anyway extends to ordinary residents only, there not being even a power to provide those services to disabled people who are not ordinarily resident (see 11.2).
15.2.2 MEANING OF ‘ORDINARILY RESIDENT’
There is no statutory definition of ‘ordinarily resident’ and it is ultimately for the courts to decide what it means. Department of Health guidance states that the term should be given its ordinary and natural meaning subject to any interpretation by the courts. It states that the concept of ordinary residence involves questions of fact and degree, and factors such as time, intention and continuity in the particular context (LAC(93)7, para 2). A number of court cases that have considered ‘ordinary residence’ are cited in the guidance (paras 12, 13):
•R v Barnet LBC, ex p Shah defined a person’s ordinary residence as ‘abode in a particular place or country which he had 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’.
•R v Waltham Forest LBC, ex p Vale and R v Redbridge LBC ex p East Sussex CC 1992.
Of these two latter cases, one involved provision for autistic twins who had apparently been abandoned by their parents:
Ordinary residence: parents returned abroad. A dispute arose between two local authorities about which authority had a statutory responsibility for making arrangements for two autistic twins with learning disabilities. Their parental home had been in Redbridge but they had attended a residential Rudolf Steiner school in East Sussex. The parents then sold the house in Redbridge and returned to Nigeria. The imminent closure of the school subsequently sparked the dispute between the two councils about which would be responsible for making arrangements for the provision of residential accommodation under s.21 of the National Assistance Act 1948.
The judge, referring to the case of R v Barnet LBC, ex p Shah, found that the parents’ departure and sale of the family home meant that the twins had ceased to be ordinarily resident in Redbridge, and that the duty to make provision fell to East Sussex (R v Redbridge LBC, ex p East Sussex CC).
The other case concerned the ordinary residence of a woman with learning disabilities:
Ordinary residence: parental home. The person concerned was 28 years old and mentally handicapped from birth. In 1961 she had moved to Ireland with her parents where she lived in residential homes. Her parents returned to England in 1978 to live in Waltham Forest; she returned in 1984 and lived for one month with her parents before being placed in a home in Buckinghamshire. Waltham Forest now denied financial responsibility for the placement on the grounds that she had been ordinarily resident in Ireland and that the stay with her parents had been merely temporary.
The judge disagreed. First, the woman concerned was so mentally handicapped that she was totally dependent on her parents and was in the same position as a small child. Concepts such as ‘voluntarily adopted residence’ or ‘settled purpose’ – used in R v Barnet LBC, ex p Shah -were irrelevant to the case. Therefore, the woman’s ordinary residence was that of her parents, which was not her ‘real home’ (a concept rejected in the Shah v Barnet LBC case) but her ‘base’.
Should he have been mistaken in this view, and she did have capacity, the judge went on to state that in any case the one-month stay with her parents was sufficient to constitute ordinary residence – since the Shah case made clear that ordinary residence could be of short duration. Alternatively she might have been of no settled residence; but she could not be resident in the area in which she had been accommodated before moving back to the parents’ home.
Thus, responsibility lay with Waltham Forest and not Buckinghamshire (R v Waltham Forest, ex p Vale).
15.2.3 COMMUNITY CARE RESIDENTIAL ACCOMMODATION AND ORDINARY RESIDENCE
The rules concerning ordinary residence and the provision of residential accommodation – when, due to age, illness, disability or any other circumstances, care and attention is not otherwise available for a person – are contained in s.24 of the National Assistance Act 1948 and in directions issued by the Secretary of State. The Department of Health has also issued guidance on the matter. In substance, the position is as follows:
•No settled residence. A local authority has a power to provide residential accommodation for people with no settled residence and for people ordinarily resident elsewhere but who are in urgent need of accommodation.
•Provision on behalf of another local authority. A local authority has a power to provide residential accommodation for a person ordinarily resident in the area of another authority with the consent of that other authority.
•Placement in another area. If a person is provided with residential accommodation, he or she is deemed to be ordinarily resident in the area in which he or she was ordinarily resident immediately before the residential accommodation was provided.
•NHS patient. An NHS patient is deemed to be ordinarily resident, for local authority purposes, in the area (if any) he or she was living in immediately before entering hospital (National Assistance Act 1948, s.24).
(The Health and Social Care Act 2008 amends this, substituting the term NHS accommodation for the term hospital, and making clear that the rule applies both to accommodation provided under the NHS Act 2006 and also provided by a Primary Care Trust under s.117 of the Mental Health Act 1983.)
Department of Health guidance advises that when a person states that he has no settled residence or describes himself as having no fixed abode, the social services authority where he presents himself should normally accept responsibility (LAC(93)7, para 16). Nonetheless, if a person is deemed to have no settled residence, he or she is less well protected (Secretary of State for Health 2007, determination no.1). Thus:
No settled residence and urgency. ‘The point that was made, having regard to the combination of the primary statutory provisions and that direction, is that in respect of persons ordinarily resident in their area local authorities owe a duty. However, they only have a power in respect of persons who are not ordinarily resident in their area. That can occur in circumstances when the person is ordinarily resident in the area of another local authority,or it could occur in circumstances when the person is not ordinarily resident in any authority. When the person is ordinarily resident in another authority, then the power is exercisable with the consent of the authority that owes the duty, that is, the authority where the person is ordinarily resides. Where there is no settled residence there is a power, save that that power is converted into a duty in circumstances of urgency.
I accept the submission made on behalf of Greenwich that a message derived from the statutory provisions (which expressly envisage the Secretary of State making directions against the backdrop of the subject matter of provisions which are the last safety net) is that the preservation of a duty is a relevant feature. Thus it seems to me that that is a factor to be taken into account in considering whether or not a person has ceased to become ordinarily resident in a local authority which owed him a duty. It is, however, naturally, no more than a factor’ (R(Greenwich LBC) v Secretary of State for Health).
So, the power of a local authority to provide for somebody of no settled residence is converted to a duty in case of urgency; and physical presence in the area of a local authority is enough to trigger this. For instance, in one legal case a person had lived for some three years in Lambeth before being imprisoned for drugs offences. On release, she went to stay with a friend in Hackney for about two weeks; one day she travelled by public transport to Lewisham (where her half-sister and son lived), where she presented herself at the social services office. The court held that Lewisham was the responsible authority (R(S) v Lewisham LBC).
The guidance states also that if a person is placed in a care home by one local authority in the area of another local authority, then it is the former that retains responsibility. However, if by ‘private arrangement’ the person then moves, he or she ‘may’ become ordinarily resident in the area of the second authority, ‘depending on the specific circumstances’. If the person makes his or her own arrangements to enter a care home in a different local authority’s area, and subsequently requires social services assistance, he or she will normally be ordinarily resident in the second authority’s area (LAC(93)7, paras 7,10).
18.104.22.168 Entering a care home: ordinary residence
Thus, a key issue inviting dispute is the legal rule in s.24 of the 1948 Act sometimes referred to as a ‘deeming’ provision. That is, a person is deemed to be ordinarily resident in the local authority where he or she was resident, immediately before residential accommodation or services were provided.
Furthermore, in determining whether such accommodation was provided under the 1948 Act, it is essential that the contractual arrangements with the care home be made by a local authority (Chief Adjudication Officer v Quinn). When a person has adequate funds to pay for his or her own care, this has sometimes led to a local authority carrying out an assessment and even making travel arrangements for a person to enter a care home in the area of another local authority. But it is the person himself or herself who makes contractual arrangements with the care home. However, when that person’s funds run down and he or she needs local authority assistance, it the second rather than the first local authority that is normally responsible. This is because the person had voluntarily taken up residence in the area of the second local authority, where he or she was resident immediately before requiring provision of residential accommodation under the 1948 Act.
This rule was tested in the following case, referred initially to the Secretary of State for resolution and then to the courts. It included the all too common allegation of ‘dumping’ made by one local authority against another:
Dumping a care home resident over the border? A woman was in a care home in Bexley – apparently placed there by the local authority. Complaints were made about her behaviour and the conclusion was reached it was no longer appropriate for her to remain there. Two other placements in the local authority were considered but rejected on grounds of suitability or lack of an available place. A third option was identified 100 yards over the border with Greenwich. She moved to that home.
Bexley Council knew that within five weeks her capital would have reduced such that a local authority would have to step in and start to contribute to some (and progressively more) of the cost. Bexley left it up to the family to fund the placement for those five weeks – before claiming that, once the five weeks were up, she would be Greenwich Council’s responsibility. Greenwich argued that the woman had not voluntarily adopted residence in Greenwich (since the placement was arranged in all but contract by Bexley) – and that moreover it was intended to be a temporary placement only.
Muddle rather than deliberate dumping. The dispute was referred to the Secretary of State who applied the deeming provision and held that Greenwich was now the responsible local authority. The case subsequently went to court. The judge did not accept that Bexley had acted in bad faith by deliberately ‘dumping’ the woman in Greenwich. In fact, it appeared to be a muddle rather than anything else. Bexley had not informed Greenwich; furthermore the contractual arrangements for the relevant period had been entirely unclear. The family made no contractual arrangements with the home, nor did Bexley Council – Greenwich Council knew nothing of what was going on. The judge had sympathy with the woman and her family, because Bexley had effectively withdrawn and Greenwich was in ignorance.
Severing of residence in first council. The Secretary of State had relied on the fact that, at the end of the five weeks, the woman had severed ties with Bexley whether or not her move was voluntary. Her house had been sold anyway, and she was no longer living in the area. She was either of no settled residence or ordinarily resident in Greenwich; either way she was no longer ordinarily resident in Bexley. And she could not be deemed to be so, because Bexley had not contracted with the Greenwich care home for those five weeks.
Residence in second council. The judge pointed out that this lack of contracting by Bexley could not be determinative, even though it was significant – because in principle she could have remained ordinarily resident in Bexley if the placement had been regarded as an emergency one with a view to her being found another home in Bexley. Nonetheless, he pointed out that she might have remained in the Greenwich home for days,weeks, months and that it was difficult to say she had not acquired ordinary residence there. The judge was not prepared to hold the Secretary of State’s decision unlawful. So Greenwich ended up responsible (R(Greenwich LBC) v Secretary of State for Health).
Likewise in the next case:
Moving into a care home in another council. An elderly woman, suffering from vascular dementia, required placing in a care home. She lived in Council B. Her husband died. The family became concerned. She moved to live temporarily with her son in Council A. He could not cope. He placed her in a nursing home for two days on 10 June; during this time Council A did an assessment. He then moved her to another nursing home, this time for seven days, on 12 June. On 19 June, Council A took over the funding in the interim, pending resolution of its dispute with Council B.