Ordinary Residence and a Choice of Where You Live

Housing Options has, along with ARC and other organisations, been concerned about a long standing problem over the rules about ordinary residence and funding. This briefing and case studies has been produced to illustrate the problem and possible ways forward. We would be pleased to receive further feedback or examples to learn form the experience of others (contact details below).

If a person needs substantial support at home for reasons of a disability or mental health or other reason they have difficulty moving from one Social Services authority to another. There is uncertainty about which authority is responsible for funding care and support; the authority from which the person originated or the authority in the area where they now live or to which they want to move. Although it appears superficially to be administrative awkwardness, the impact on the lives of people with a learning disability, and others, is serious.

There is also an evident contradiction with the new proposals for Adult Services commissioning as proposed in the Green Paper Well Being Independence and Choice. The idea of individualized budgets sits very awkwardly with questions over who pays in the examples given below - people who want to live in another area than where they are when assessed as eligible for care and support. Logic suggests that if it is your budget it can travel with you.

The problems affect Local Authorities carrying out assessments and meeting the cost of those packages of care. Some are net importers and some exporters. Providers find it difficult to help people with moves between services or areas. But by far the greatest difficulty is that faced by the person with a disability themselves facing obstacles to moving when they need to. They face a real Catch 22. They cannot move to a new area until they have the agreement of the receiving authority to provide the care package and can find it extremely hard to persuade a receiving authority to carry out a care assessment before they move into the area.

Residential Care Homes

Under the National Assistance Act 1948 Social Services have responsibility for providing residential accommodation to people who are "ordinary resident" in the authority's area. Section 21 deals with placement in the authorities own homes, Section 26 with purchasing service in the independent sector). Section 24 says a person who is placed in residential care, "shall be deemed to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided". So a person can live in residential care in another area but remain the responsibility of the authority where they lived immediately before entering residential care.

So generally the placing authority is and remains responsible for residential care placements. Local Authority Circular LAC (93) 7 reinforces this saying "the placing authority will normally retain for that person the same responsibility that it has for someone living in its own area."

Supported Housing

Although the 1948 Act refers to "residential accommodation", with the growth of Supported Housing, registered group homes and more diverse ways of providing care and support it has been accepted in some court decisions that the 1948 Act applies equally to these more modern arrangements so that the placing authority remains responsible whether or not the placement is in a registered care home.

The Social Services Ordinary Residence guidance LAC93(7), however, deals primarily with residential care arranged out of area. It does not deal with Supported Housing and domiciliary care outside of the LA area.

Three common problems occur

1. Can a Social Services Department (SSD) as part of their care management responsibilities arrange accommodation and support outside their area? This may be for reasons of the choice of the person concerned. It may be that the only suitable accommodation is in an adjacent authority area. It may be for reasons of the cost or quality of the service.
In terms of ordinary residence, the person is now a resident of the authority covering their new home and would have to cover the cost of another's care package. If allowed there is a perverse incentive for a SSD to seek accommodation in an adjacent authority's area.

2. If a residential care home with individuals being funded by other placing authorities deregisters, or if someone moves from a residential home to Supported Housing who is responsible for funding the new service? Under residential care, the individuals were not automatically regarded as resident in the area where the home was based and responsibility remained with each person's originating authority. However with Supported Housing this is not the case. Some originating local authorities have continued to accept responsibility even after deregistration but others have not. This creates a problem for the receiving authorities and a potential financial disincentive for them to support deregistration, even though Supported Housing may be more appropriate for the individuals affected.

3. A third and potentially very common problem is simply over a choice of where and how you live the Government's prime objective for Valuing People. At present you can choose to move home for reasons of family, marriage, work, or other changes of circumstances but it will be impossible to do so unless you the existing care package is passported to the new area or if the authority providing the existing care package agree to sustain the current arrangements.

Where it can be said to be the individual's choice to move it is argued by some lawyers that a new home cannot be regarded as provision of residential accommodation under Section 21 of the National Assistance Act and the 'receiving' authority will be responsible for the care or support for those who have moved. There is no certainty that the receiving authority will adopt the existing care. They may have different eligibility criteria, priorities or views about the suitability of the service.

Numbers in England (Learning Disability)

Residential Care Homes (2004) 57,913 places - about 15,000 living out of area who would be affected if they move to supported housing.
Supported Housing 29,785 - all potentially with have problem moving area
New supported housing out of area - estimate ¼ of c 2,500 care packages per annum

Practical solutions

Out of area supported housing
Where the need for accommodation for someone has been identified in a care assessment and where they find or are found accommodation in another authority area the originating authority should retain responsibility for any support required to maintain them in that accommodation.

Deregistration
Where there is deregistration of a care home or someone moves from a care home the care management and financial responsibilities should remain with the originating authority unless agreed otherwise by both parties or interauthority arrangements.

Care management
Care management in such cases could be delegated to the SSD where the person lives by mutual agreement.

Inter authority or regional agreements
Where mutually agreed transfer of responsibilities can be made the care assessments and proposed support package should be honoured by the receiving authority for a defined period and only subsequently altered by a further full assessment.

Legal powers
Many authorities have been advised that they do not have the powers to pay for the care or support out of area. Possible options which have been considered follow.

1. Under Section 2 Local Government Act 2000 (colloquially known as the "wellbeing power") a Local Authority has the power to do anything which it considers is likely to achieve the promotion of social wellbeing in its area.

2. It might be possible to apply the principles of the case of R v Berkshire CC ex p P to enable a Local Authority to provide for a domiciliary placement out of area until an arrangement has been reached with the new Local Authority.

3. The requirements of Section 2 of the Chronically Sick and Disabled Persons Act could be changed so that the services are not only available to people who are ordinarily resident in the Local Authority's area.

It would be useful to take further legal opinion on these options which could then be advanced in supporting Guidance on Ordinary Residence.

Health funding
In joint health and social care funding packages there needs to be an expectation that the health part of the package of funding can be passported to a receiving authority. Where an individual is discharged form a long-stay hospital, the long stay funding and responsibilities should transfer to the originating authority (where individual is originally from) and should include an element for care management costs.

Case Studies

These examples show the potentially damaging limitation on individual rights and choice which people with learning disabilities experience. Many people, understanding the potential risks, decide not to make a move, live with a partner, change home or service provider. The idea of consumer choice is unfulfilled.

Two and a half years until Ministerial intervention

A resident was placed out of area in a registered care home and had been living for there for 15 years. The service did not provide substantial levels of personal and was encouraged by the local authority to deregister and run as supported housing. The service felt this was more appropriate in terms of rights, independence and inclusion in more mainstream provision and managed the deregistration with the agreement of the care standards authority. However after the introduction of Supporting People in 2003 the original placing authority stopped payment of the domiciliary care package. The family took up the case and after 2½ years argument between the authorities about who pays they wrote to Stephen Ladyman, Health Minister, who resolved the case with the receiving authority agreeing to meet the cost of the care package.

Critical reports from the Local Authority Ombudsman

Another resident who had lived for 21 years in a home which deregistered (for similar reasons as given in the example above) had his funding withdrawn by the original placing authority following deregistration of the home. Following Stage II complaints procedure the case went to the Local Authority Ombudsmen who said that the case had not been properly dealt with and in this case it was the placing authority who had to pay compensation and required to meet the cost of domiciliary care. The receiving authority now carries out care management. The Ombudsman said that the resident was not given any choice in the change to the service nor offered any alternative service provision.

Partnership in marriage but not in funding:‘We want a joined up care package'

Two residents formerly living in adjacent authorities wanted to marry and applied to a housing association who assessed them as requiring a 2 bedroom flat but if they move to the new tenancy but there a difficulty getting agreement for financial support for the one that is moving between authorities. Their requirements make it sensible for a single agency to meet their needs but the fragmented nature of funding and provision of accommodation is currently making this difficult to achieve. To make it more complicated part of the support package is from Supporting People Grant which is paid to the provider and would be lost if he moves.

Choice of where and how you live - common sense prevails

Four students who were weekly boarders at a residential college wanted to be able to live together when they finish college. Their preferred option is to live near their college, in a unitary authority, where they know the area and can continue to use local colleges or work experience projects. The parental homes of one of the students is in the unitary authority, two are from the surrounding county authority and the parents of the fourth live further away but wish to move into the area. Each of them have contacts with social services in the local area authorities where the parents live. The first response to the proposal to share a house together was that nothing could be done to provide housing until support funding could be agreed. At first it was thought that the receiving authority where the students would be resident would pay for the cost of care as ‘ordinarily resident' but this was not acceptable to that authority. After joint representations and meetings it was agreed that the placing authorities would provide a care assessment and funding for a supported housing service in the new home. The case for ‘cross authority' arrangements makes sense especially when there may not be the local options available for someone with special needs.

Even agreed moves are vulnerable

Following a reassessment for a care home resident, a move to supported housing was agreed. The care plan was confirmed but after the move had taken place the authority stopped funding the care package on the ground that the person was ordinarily resident in a new area, that the receiving authority had not agreed to pay for care and asked the provider to address this authority for a remedy. On behalf of the resident it was argued that ordinary residence could only be agreed between the authorities, or by arbitration and until that time the care plan had to be maintained by the authority and could not be unilaterally withdrawn. This it was argued amounted to maladministration and neglect of responsibility for a vulnerable adult.

Maurice Harker
Housing Options
Dec 05

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Telephone: +44 (0)845 4561497 E-mail: enquiries@housingoptions.org.uk