Luke Clements

Luke Clements is the Cerebra Professor of Law at Leeds University and is a solicitor.

Ordinary residence

Briefing by Luke Clements ~ updated August 2017.  For corrections or suggested additions please contact anjames57@gmail.com

 

The text below is an over view of the law relating to ordinary residence, portability and choice of accommodation in Wales. For a detailed paper by Luke Clements on these topics, click here.

 

Ordinary residence (section 194 – 195)

The law concerning the determination of a person’s ‘ordinary residence’ is largely unchanged by the Act – and the two ‘deeming’ rules are preserved. The first deeming rule (now found in section 194(4)) concerns adults in NHS accommodation: such people are deemed to be ordinarily resident in the area in which they were immediately before they entered the NHS accommodation / ambulance.

The second deeming rule (now found in section 194(2)) concerns adults whose accommodation is arranged by a local authority in the area of another local authority.  Contrary to expectations, the Act continues to restrict this rule to cases where a local authority arranges accommodation in a registered care home – see the Care and Support (Ordinary Residence) (Specified Accommodation) (Wales) Regulations 2015: the draft regulations[1] had indicated that this would be extended to include ‘adult placement scheme accommodation’.[2]

 

Portability of care (sections 56)

The Act prescribes the way local authorities transfer responsibility for the care and support of people when they move from one authority area to another.  It does this by attempting to embed ‘good practice’ (ie what should happen) into legislation.  The problem is that there are no sanctions if either authority fails to act properly – and so an individual may have to make a complaint / go to the Ombudsman if a problem occurs.

Section 56 contains a number of procedural obligations – which may be fleshed out further by regulations (section 56(6)) – but none appear to have been made. The only guidance provided relates to the process for resolving the inevitable disputes that this provision will create (and this is found in the Part 11 Code of Practice (Miscellaneous and General).

In essence the portability ‘right’ provides that where a local authority (the ‘sending’[3] authority) is providing care and support for an adult or a child in need and another authority (the receiving authority) is notified that he / she intends to move into their area (and it is satisfied that this is likely to happen) then it must (among other things) undertake an assessment of their needs.  If the assessment has not been completed by the time the person actually moves, then the receiving authority must meet the needs identified by the sending authority ‘in so far as that is reasonably practicable’ until its assessment and care plan is put in place.

A problem that has yet to be fully resolved, concerns individuals who move to live in England, Scotland and Northern Ireland. There is however a brief (one page) protocol setting out ‘Principles of Cross-Border Continuity of Care within the United Kingdom’ which aims:

to maintain the adult’s wellbeing and prevent them from falling into crisis; ensure that the adult is at the centre of the process; and that responsible authorities should work together and share information in a timely manner to ensure needs are being met both on the day of the move and subsequently.

Annex 2 of the Part 11 Code of Practice (Miscellaneous and General) also provides some detail on this.

 

Choice of accommodation rights (sections 57)

The Act provides for regulations – The Care and Support (Choice of Accommodation) (Wales) Regulations 2015 – that entitle adults in residential accommodation to choose their care home anywhere in the UK.  These permit a ‘topping up’ payment being made by a third party where the care home is more expensive than ‘the cost that the local authority would usually expect to incur’.  There is substantial evidence concerning the improper imposition of topping up payments[4] – largely due to the local authority ‘usual rate’ being too low.  The ‘choice’ provisions look to continue to sustain the considerable litigation resulting in judgments against local authorities in such cases.[5]

The Welsh provisions now differ significantly from the English scheme – where the choice of accommodation rights extend to ‘supported living’ and to ‘Shared Lives’ schemes.

 

 

[1] The draft Care & Support (Ordinary Residence) (Specified Accommodation) (Wales) Regulations 2015 reg 4.
[2] Namely ‘accommodation which is provided together with personal care to an adult by an individual in the individual’s own home under the terms of an agreement between that individual and a person who is registered under Part 2 of the Care Standards Act 2000 as the provider of an adult placement scheme’ – and see also the Adult Placement Scheme (Wales) Regulations 2004 SI 1756 (W.188).
[3] The English Act was amended to remove what was thought to be derogatory language of ‘sending and ‘receiving’ authorities – and speaks instead of ‘first’ and ‘second’ authorities.
[4] See for example Local Government Ombudsman Report concerning Solihull MBC 14 014 177 (11 January 2016) and also Anna Passingham, James Holloway and Simon Bottery Care home top-up fees: the secret subsidy (Independent Age 2013).
[5] See for example, Forest Care Homes Ltd v Pembrokeshire County Council [2010] EWHC 3514 (Admin).