- 1. Introduction
- 2. How does Ordinary Residence affect Provision of Care and Support?
- 3. How to Determine Ordinary Residence
- 4. Where a Person Lacks Capacity to Decide where to Live
- 5. Persons of No Settled Residence
- 6. Ordinary Residence when Arranging Care and Support in another Area
- 7. Other Common Situations
It is critical that local authorities understand which people they are responsible for, and that people themselves know who to contact when they need care and support. The local authority is only required to meet the needs of those who are ‘ordinarily resident’ in their area (or are present there but have no settled residence (see Section 5, Persons with no Settled Residence).
Ordinary residence is not a new concept; it has been used in care and support for many years. However, there will always be cases in which it is difficult to establish precisely where a person is ordinarily resident.
Ordinary residence also applies to those whose care is privately funded (see Section 7.3, People who arrange and fund their own care).
This chapter outlines some of the key issues in ‘ordinary residence’.
2. How does Ordinary Residence affect Provision of Care and Support?
Ordinary residence is one of the key tests which must be met to establish whether a local authority is required to meet a person’s eligible needs. It is therefore crucial that local authorities establish at the appropriate time whether a person is ordinarily resident in their area, and whether such duties arise.
Local authorities must determine whether an individual is ordinarily resident in their area following their assessment of the adult’s care and support needs and after deciding whether the person is eligible for care and support to be organised by the local authority.
Self-funders can have their care and support needs assessed and organised by the local authority if they so wish, even where the local authority does not fund any type of care provision.
The determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the local authority should meet the individual’s needs first, and then resolve the question of ordinary residence subsequently. This is particularly the case where there may be a dispute between two or more local authorities.
2.1 Adults and Carers
The test for ordinary residence applies differently in relation to adults and their carers.
For adults with care and support needs, the local authority in which the adult is ordinarily resident will be responsible for meeting their eligible needs.
For carers, however, the responsible local authority will be the one where the adult for whom they care is ordinarily resident. There may be some cases where the carer provides care for more than one person in different local authority areas.
Where there is more than one local authority involved, those authorities should consider how best to cooperate and share the provision of support. There might be an agreement to jointly fund the support for the carer, or the authorities concerned may agree that one takes overall responsibility for certain aspects. For example, one might lead on reviews because it is geographically closer to the carer’s home.
3. How to Determine Ordinary Residence
Local authorities should apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration.
Ordinary residence can be acquired as soon as the 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.
There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.
4. Where a Person Lacks Capacity to Decide where to Live
See also Mental Capacity.
If it can be shown that a person lacks capacity to make a particular decision, the MCA makes clear how decisions should be made for that person. For example, if a person lacks capacity to decide where to live, a best interests decision about their accommodation should be made under the Act. Any act done, or decision made (which would include a decision relating to where a person without capacity should live), must be done or made in the best interests of the person who lacks capacity. The MCA sets out how to work out the best interests of a person who lacks capacity and provides a checklist of factors for this purpose.
The following issues should be considered in determining a person’s ordinary residence:
- the place of the person’s physical presence;
- their purpose for living there;
- the person’s connection with the area;
- their duration of residence there;
- the person’s views, wishes and feelings (as far as these are ascertainable and relevant).
5. Persons of No Settled Residence
Where doubts arise about a person’s ordinary residence, it is usually possible for local authorities to decide that the person has resided in one place long enough, or has sufficiently firm intentions in relation to that place, to have acquired an ordinary residence there. Therefore, it should only be in rare circumstances that local authorities conclude that someone is of no settled residence. For example, if a person has clearly and intentionally left their previous residence and moved to stay elsewhere on a temporary basis during which time their circumstances change, a local authority may conclude the person to be of no settled residence. A local authority may decide that a person arriving from abroad is of no settled residence, 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.
6. Ordinary Residence when Arranging Care and Support in another Area
There may be some cases where the local authority considers that the person’s care and support needs can only be met if they are living in a specified type of accommodation. This could be in a care home, or other kinds of premises, such as supported living or extra care housing. If that type of accommodation is only available in another local authority area, the adult remains ordinarily resident in the first authority which arranged the placement; they do not become an ordinary residence in the ‘host’ or second authority. The local authority which arranges the care remains responsible for meeting the adult’s needs.
If two local authorities fall into dispute with each other about whether the person’s care should continue to be funded, the existing commissioner of care must fund until the other local authority accepts that the resident is ordinarily resident or the Secretary of State for Health makes a decision on the issue.
7. Other Common Situations
7.1 Temporary absences
Once someone has become ordinarily resident in one area, this should not be affected by them temporarily leaving the area. Absences such as holidays or hospital visits in another area, should not break the continuity of ordinary residence.
7.2 People with more than one home
If a person appears genuinely to divide their time equally between two homes, the local authorities involved need to establish which of the two homes the person has the stronger link. This is because a person cannot have more than one place of ordinary residence.
7.3 People who arrange and fund their own care
People who self-fund and arrange their own care (self-funders) and who choose to move to another area and then find that their funds have depleted can apply to the 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 authority.