Category Archives: Ordinary residence, portability and continuity

Which council should be buying the advocacy input for “out of area” clients?

On my travels doing training, I am being told that when a council telephones an out of area advocacy provider, because the council has a client in that other area, who needs advocacy, the organisation is often saying “No, we are not allowed to do advocacy for you – we are tied to doing it for this council, the one who is paying us.” Then the council in need says “Well we would pay you, of course – but we need a local advocate” the organisation still says “No, it’s in our contract – we can only do it for the local council”.

Clearly this is madness in light of the Care Act policy. It isn’t co-operation as between councils; it ignores the freedom of the advocacy organisation – unless wholly in the financial control of the purchasing council (which would not be terribly impressive from the ‘independence’ perspective!) – to sell services to whomsoever wants to buy them; and it scuppers the provision of mandatory advocacy services  – or makes it cost twice as much, in times of austerity.

What does the guidance say?

Continuity of care and ordinary residence

7.29. The local authority which is carrying out the assessment, planning or review of the plan is responsible for considering whether an advocate is required. In the case of a person who is receiving care and support from one local authority and decides to move and live in another authority, the responsibility will move with the care and support assessment (see chapter 20).

[that bit of the guidance needs to say – we feel sure – “…if the person is simply moving to ordinary accommodation, of their own volition, and not taking up a place in specified accommodation as a resident or a tenant, through the auspices of care planning done by the council that USED to be responsible – for all of those people will be able to assert continuing links with their old council.”]

The guidance goes on:

For a person whose care and support is being provided out of area (in a type of accommodation set out in the section on ordinary residence) (see chapter 19) it will be the authority in which the person is ordinarily resident.

[my comment here is that that is at least consistent with the legislation, because it is underlining that living out of area under a care plan can mean that it is not the authority on the spot which will be liable to pay; and the advocacy obligation should of course go with the authority that is responsible.

But it is not so helpful to people wondering what should happen when a new setting elsewhere than in the place where they are currently living has been found or is going to need to be considered, due to care planning concerns or where a change of status needs to be acknowledged: for instance, from a long term rehabilitation placement, paid for by the NHS out of the person’s original area, not yet counting as CHC, and now perceived to be coming to an end.

My view, applying general, and Care Act principles, is this: when a person is provided for by the NHS – wherever that happens to be – it does not change their place of ordinary residence for social care purposes. When a rehab package is believed to have achieved its purpose, the person in question is entitled to a proper review of whether they NOW need CHC to be commissioned, by the CCG where they have been GP registered (the rehab area, for this example) or whether they are NOW merely eligible for social care purposes or a split health and social care package – and the council where the person was ordinarily resident before the rehab, on general principles, will be the relevant authority for liaising with, UNLESS the person in question is going to make a move to ordinary accommodation somewhere of their own choice because they are not interested in living in specified accommodation. So the OLD council needs to make the decision about whether specified accommodation is needed, in most cases, if there is ultimately no CHC status awarded, and the OLD authority will need to make provision for independent advocacy.]

The guidance goes on:

Understanding of local communities may be an important consideration, so the advocacy/advocate should wherever possible be from the area where the person is resident at the time of the assessment, planning or review.

[My comment is that this only makes sense if the advocate is needed in the context of a settled placement or care arrangement out of area, not a situation where a person needs to consider acquiescing in, or other people need to do best interests decision making about, a move to one of a range of options somewhere else, somewhere other than where the person is currently settled.]

Finally, the guidance says this:

Consequences for local authorities

The local authority should have local policies to clarify the appointing of advocates:

  • from advocacy services out of their area that they may not have a direct commissioning relationship with (as it currently is with Independent Mental Capacity Advocate (IMCA));
  • for people placed out of area temporarily;
  • for people who move from one area to another following an assessment and care and support planning in which an advocate is involved (the same advocate should be involved wherever practicable).

 

[In all cases, if councils have expanded their IMCA contracts to provide for Care Act advocacy, and think that by so doing they have in some way reserved those advocates for use only by themselves, then I would have to say that I think that the commissioning advice in the Guidance would produce a system that would not be fit for purpose. A council with out of area responsibilities needs to be able to commission Care Act independent advocacy from organisations or individuals on the spot where the client is, or in the area where the client is considering a range of options and needs local insights. Anyone who has worked in social care for a long time will know that charging for services provided by one council ON BEHALF OF ANOTHER which is properly liable, is a commonplace part of the system, based on the law of agency].

Comments about other ways round this hiccup in the thinking, would be most welcome.

Thoughts on the Cornwall Judgment

Having been wrestling with practitioners’ bemused questions about the state of play on Ordinary Residence over the past few months, I share Belinda’s relief at the common sense shown by the Supreme Court in finding Wiltshire liable.

This clarifies the situation in several ways which I think local authorities should find helpful in working out the liable council. As anyone who has been to CHL training will know, Annex H of the Care Act Guidance says that local authorities should:
“start from a preliminary assumption that the young person remains ordinarily resident in the local authority in which the child was ordinarily resident when they turned 18.”

The decision helpfully clarifies that that starting assumption cannot be too readily displaced in the case of a young person who lacks the capacity to decide their own residence.

The Supreme Court has helpfully confirmed that:
(1) An area cannot be someone’s ‘base’ without factoring in whether they do or have ever actually lived there
(2) Ordinary Residence cannot be based on the residence of a decision maker (parent or deputy) rather than the subject themselves
And also sorted out that for those who lack capacity to make residence decisions:
(3) Periods of out of area placement whilst a child are not enough by themselves to change ordinary residence, even where these are prolonged

Those of us who have spent months wrapping our brains around these issues are relieved by the clarity and coherence of this position. In many cases councils will find it easier to recognise when they should simply accept that they are responsible (though it remains to be seen whether all will do so in practice!). Councils and providers can heave huge sighs of relief and hopefully develop high quality, community based care, appropriate to the needs of individuals without fear of ‘dumping’.

This decision is hugely in the interests of young people who lack such capacity (many of them autistic). The clarity thus provided should cause local authorities who have such young people in their care to finally accept that they are, in most cases, going to continue to be responsible for them throughout their lives and to focus on the suitability of placements, rather than on which side of geographical borders they lie. It should very much improve transition planning for these young people – the fractured and frequently argumentative nature of which has often been a cause for concern.

The young people at the heart of these cases are not just costly burdens to be looked to for arbitrary savings in council budgets. They are people, not packages or exports to be fought over. I fear there are still O/R battles which remain to be fought through the courts, as Belinda highlights. But at least the outcome from this one is legally coherent and clear enough to sound a warning to councils about legally and ethically dubious attempts to export young people viewed as too costly.

Wiltshire responsible, by a 4:1 majority, in the Supreme Court – the outcome, analysed….in Care Act terms

For those following the law of ordinary residence, it will be appreciated that the government’s guidance about the subject, for the Care Act, had to be written in somewhat opaque terms, because of the progress up the judicial system, of the Cornwall case: a case where three councils were slugging it out over some years, about ongoing responsibility for adult services for a young man born in Wiltshire, fostered to South Gloucestershire and visiting Cornwall at his natural parents and siblings’ home, twice a year.

The Secretary of State had said Cornwall was where PH, the young man was to be regarded as o/r, not on the basis of his intention, because he lacked capacity, but on the basis that this was where his real ‘base’ was. Cornwall used judicial review to challenge that decision; the care was costing £80K a year. The High Court found that the Secretary of State was at least not WRONG about it being Cornwall.  The Court of Appeal said ‘Rubbish!’ however, and that it was in fact South Gloucestershire.

The Supreme Court has now said it is and was Wiltshire, all along – restoring, in my opinion, some sanity, intellectual coherence and consistency into the interpretation of the law, in such a way as to make it hopefully much easier to predict the ordinary residence of people with care and support needs when they transition into adult services.

Here are the important bits in the judgement, to my mind – do read them, it’s really worth it, for understanding the issues. I have added emphasis where I think it helps.

“Allthough the choice of South Gloucestershire may fit the language of the statute, it runs directly counter to its policy. The present residence in Somerset is ignored because there is no connection with that county, other than a placement under the 1948 Act. By the same policy reasoning, South Gloucestershire’s case for exclusion would seem even stronger. There is no present connection of any kind with that county, the only connection being a historic placement under a statute which specifically excluded it from consideration as the place of ordinary residence for the purposes of that Act (the Children Act).

54. The question therefore arises whether, despite the broad similarity and obvious underlying purpose of these provisions (namely that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it), there is a hiatus in the legislation such that a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to be regarded on reaching that age as ordinarily resident in the area of Y for the purposes of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y. 55.

….It is highly undesirable that this should be so. It would run counter to the policy discernable in both Acts that the ordinary residence of a person provided with accommodation should not be affected for the purposes of an authority’s responsibilities by the location of that person’s placement. It would also have potentially adverse consequences. For some needy children with particular disabilities the most suitable placement may be outside the boundaries of their local authority, and the people who are cared for in some specialist settings may come from all over the country. It would be highly regrettable if those who provide specialist care under the auspices of a local authority were constrained in their willingness to receive children from the area of another authority through considerations of the long term financial burden which would potentially follow.

58. Section 24(5) poses the question: in which authority’s area was PH ordinarily resident immediately before his placement in Somerset under the 1948 Act? In a case where the person concerned was at the relevant time living in accommodation in which he had been placed by a local authority under the 1989 Act, it would be artificial to ignore the nature of such a placement in that parallel statutory context. He was living for the time being in a place determined, not by his own settled intention, but by the responsible local authority solely for the purpose of fulfilling its statutory duties.

59. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect, when it came to the transition in his care arrangements on his 18th birthday. [emphasis from Belinda]

60. On this analysis it follows that PH’s placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached 18 he remained continuously where he was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and “swings and roundabouts” may be unavoidable.

 

What are the implications for the new Act equivalent provisions?

Anyone who has had training from the Care and Health Law team will recall that my team members have been teaching that absent a decision from a person to take a tenancy in another area, on leaving children’s services or a foster placement, the authority that WAS responsible, remains responsible. We have been teaching that because we are capable of critical legal thinking, and have thus applied such thinking to the Guidance, and been prepared to stick our necks out. That was the whole point of extolling the benefits of Legally Literate training, before the Care Act came into force.

The new Act allows for the concept of deemed continuing ordinary residence to arise not merely in relation to council arranged and paid for placements but also in respect of tenancies, so the ability to move into supported living out of area, through a capacitated or lawfully authorised deputy’s decision cannot any longer signal a shift in o/r. But the importance of this decision lies in the determination of the court to limit the influence of the Vale 2 test, particularly at the point of transition, and to set a general principle that barring exceptional circumstances, the authority that was responsible for the child, will also be responsible for the adult. Thank goodness for that!

Where a person has

a) either the capacity to move into a tenancy in their own name but clearly ongoing needs for personal care (however much may be required)

or

b) their lacking capacity to make that decision, it is nevertheless in their best interests to do so, it having been carefully assessed for, planned for, and properly resourced, and valid tenure having been secured,

then the new rules on specified accommodation and ordinary residence continuing, DESPITE it being a tenancy, and not a placement, will apply, and the old council will remain liable.

This should should stop councils being keen to export people into supported living for no really good reason other than divesting themselves of ordinary residence responsibility.

But in a case where a young person is conscientiously believed to need to be in a care home, for reasons of the need for access to care and supervision (or DoLS?) together with the accommodation in a fully managed environment, and is incapable of expressing a choice, by reason of mental incapacity, it will be the authority that was previously responsible for the person when they were a child – wherever the appropriate placement happens to be.

If the young person needs to go into a care home and IS capable of expressing a choice, he or she will have choice of accommodation rights, because an arrangement to pay for a care home will be a placement, and Choice rights apply to all such arrangements, albeit that there are limitations to do with the budget, and the suitability of the preferred accommodation, of course.

When will the old authority NOT be responsible on transition to adult services?

One example is this: if the young person can move into non-specified accommodation, or makes their own arrangements for a tenancy without that being part of a care plan based on personal care, as defined, being regarded as necessary in the place where the person is going to live, in order that the assessed eligible needs can be met, then the person’s ordinary residence WILL SHIFT, and the Continuity Provisions (about being assessed by the new authority before the move is made) will apply.

What about people who are not transitioning? For instance, elderly incapacitated people, moved to an area by loved ones, despite the person not having positively chosen, in the sense of voluntariness, or even knowing acquiescence, to have made the move?

I don’t think that the Vale 2 test is completely obsolete, in relation to incapacitated people’s rights to care – despite this decision limiting its effect, or rather, explaining its central reasoning, much more carefully than the previous case law has bothered to do, before now.

I think that where people benignly move their relatives without input from a council, and then find that they can’t cope, so need adult social care, it will still be the authority on the spot that has to pick up the pieces, even though the person has not chosen to come, and has been PUT there by loved ones, in effect.

Section 117 Mental Health Act care planning

And what about the implications for mental health patients needing s117 care plans? Those familiar with the legal literacy materials from Cornerstone Chambers and the Government’s own guidance will know what the issue is here. The old s117 provisions based on responsibility tied merely to where one was physically resident, were amended by the Care Act to refer to ordinary residence, but there was no clarification of what that meant when the person sectioned and in need of s117 aftercare, happened to be a person who was living somewhere they had been placed, by a council from their OLD place of ordinary residence, and hence another council than the one on the spot was the authority of ordinary residence before the person was sectioned.

The question that now arises under the Care Act is whether ‘ordinarily’ resident in the amended form of s117 now means where they were factually ordinarily resident, or legally ordinarily resident.

My legal instincts, during the run up to the Care Act coming into force, have openly and controversially been to the effect that whatever the words say, strictly speaking, in s117 as amended, the courts might well find a way ot lean in favour of consistency and continuity, and stretch the s117 notion of ‘ordinary residence’ to include the fact that the place where the person was physically living was on account of the care management decisions of the council which was previously in charge of arranging and paying for the care – even though that was not the area where the person has been physically and potentially capacitatedly willing to accept a care home placement, and thus living, for ordinary settled purposes.

Yes, I know that the reference to ordinary residence in the amended s117 does not say or deemed to be ordinarily resident in respect of a Care Act care package….”

Yes, I know, too, that the deeming provision in the Care Act, only apparently applies for the purposes of responsibility for Care Act services, not MHA services…

And yes, this judgement in the Wiltshire case does not – as a matter of precedent, – determine whether that is a correct gut feeling.

But it does show that the Supreme Court is willing to take policy considerations into account – even if they are not what the Secretary of State’s officials believed them to be, so far as advice in Guidance, or even formal Determinations, were concerned!

So, it’s all to play for now, in a case where a capacitated person has been placed out of area in a care home or has taken up a tenancy where personal care is available if required, under the new specified accommodation rules, since April 1st 2015, and is then sectioned. Who’s going to get the issue to court?

If you want consultancy about the implications of this case, of course I provide it for money!

Also, whether you are a purchasing council, or a provider, needing to know who on earth should be paying your fees – if you want to organise legally astute training on ordinary residence, for s117, learning disability or transition teams, please get in touch with Debbie, my administrator, on debbie@careandhealthlaw.com…

Is there something extraordinary, about the new “ordinary residence” regime….?!

Ordinary residence is a concept that is used in social care law to tie a person to a particular council for the purposes of determining which council has to fund their assessed eligible care and support needs.

The legal meaning of the notion of ordinary residence has always been firmly tied to a person’s intention – their intention to live somewhere, for every day daily living purposes….

So, in order for a person’s ordinary residence to remain with one council, if they physically move to another, one needs to find a special reason in the rules – or some fact which negates their intentionality, which would otherwise be inferred from their upping sticks and moving.

For instance, an example of the latter is a person’s moving away for a specific work contract, whilst leaving all their stuff and status in place in the old area, like their possessions, their council tax payments, etc. Their move is temporary only. Of course a temporary move can become a permanent one, if their intentions change once they get there; and a person’s arrival on day ONE, somewhere new, can signal the most clearly permanent intention to move – there’s no fixed time in a place required, for setting up one’s shift in o/r, if one’s mind is made up.

An example of a special reason in the rules, however, is that of DEEMED continuing ordinary residence. That concept is the exact opposite of the ordinary rule – that is, one is deemed to remain o/r with one’s old authority DESPITE one’s intention to live elsewhere for ordinary every day purposes being categorically clear.

That’s always been the rule for those being PLACED (ie contracted for by a council) in a care home, or PLACED in supported living setting (unregistered accommodation) without a valid tenancy and agreement to pay the RENT, having been understood by the person him or herself (or by a lawfully authorised deputy or attorney if the occupant personally lacked capacity to understand the contractual obligations s/he was agreeing to be bound by).

The new Care Act regulations extend the application of this DEEMING concept to people moving to certain kinds of supported living, whether or not they have a tenancy which they are paying for themselves or through Housing Benefit – or have been formally placed there under a council contract for the accommodation fee as well as the care – and this is where it gets surreally difficult to follow the idea behind the changes.

The definition of the types of supported living within the regulations for deeming is not clear – one of the several formulations is that it has to be premises intended for people with care and support needs where personal care is available if required.

When one considers that personal care can be made available to anyone who’s eligible in relation to the three ‘outcome’ areas related to personal care inabilities, in the eligibility regulations, and wherever they live, if it is required, through an application for care services under the Act, and that the intention bit of the definition is unspecific as to whose intention we are supposed to focus on (- we think it can only mean the landowner’s intention) – you can see how continuity of specialist care funding and a person’s transition from one place to another is going to get HARDER to be clear about, not easier.

And what does ‘available if required’, really mean? Is personal care ‘available if required’ for instance, in one person units in a block, all occupied by people with learning disabilities and epilepsy, where there is no sleep in space and no registered provider of personal care on the premises? The regulations appear to be based on the belief that Supported Living is a concept that means one thing, all over England.

But it doesn’t. Supported Living is the euphemism we used for 30 years under the old law, since the ‘NHS decant’ projects first started in the 1980s, for home care services (non-residential packages) going INTO accommodation which counted as the person’s own home, through ownership, or rental (tenancies).

  • It includes settings owned and operated by both registered social AND private sector landlords
  • The only clear rule is that the basis of occupation must be legally and factually separate from the arrangement for care, even if the direct landlord is the same entity as the provider of the care.
  • If the arrangements are legally or factually integrated and mixed up (for instance, the tenancy obliges the person to have care, or pay for care even if they don’t accept it, or obliges the person to accept care from the landlord’s personal care business, or from any agent operating on their behalf) then the package is a package of care together with accommodation, and would count as a care home. If unregistered, CQC has to uphold the law and would have to prosecute the unregistered provider, who would blame the council, inevitably, for manoeuvring the provider into letting to people ‘nominated’ by the council.
  • That’s why there can never be any expectation of the landlord or their associated care provider inevitably being chosen to be the provider of care: the tenant may want a direct payment to purchase services from someone else, although logically, the provider entity on site or very close by should always be the cheapest and therefore the one the council WANTS the person to be happy with.
  • Where the arrangements are properly separate, then the landlord can be the same person as the care provider, so long as he, she or it is registered with CQC for the provision of personal care to a person in the place where they are living.
  • And that covers any provider of services if what they are doing involves personal care, defined in the Scope regulations as extending to prompting together with supervision, of personal care tasks.

And aggravation from all this behind the scenes legal stuff leaves out of account the other very ticklish problem that has been brought about by the wording of the regulations. Even if the premises you are moving to, ‘fit’ the defintion, you are only seen as deemed to be of continuing o/r, with your old authority, if you are a person who has been said in your care plan to have needs that can ONLY be met by moving to that particular kind of accommodation.

Not assessed in such manner, please note, because WE DON’T ASSESS FOR SERVICES, UNDER THE CARE ACT!!

No, the magic words arise at the care planning stage.

How hopeless is this, I have to ask (- and I did shout loudly about, to the DH, well before D-Day for the Care Act) – for the poor social care professional faced with a care plan document that doesn’t even have a space on it for that formulation?

  • If they put the magic words down, they lumber their council with deemed continuing ordinary residence responsibility for the foreseeable future!
  • Even harder, when the very week before the move, the person was happily living in a care home, and has not been the driver behind the move to supported living: how can a practitioner POSSIBLY say that supported living is the only type of accommodation that can meet the person’s needs?
  • Even harder, if the person hasn’t moved at all, but the building has just de-registered!!
  • Impossibly hard, I am thinking, if the person in question wants to move out of area where the only suitable provider is twice the price of a provider in the area – a provider who is arguably suitable, at least, to meet the assessed eligible needs, in borough. If the person is to move as a tenant, ie directly responsible for the tenancy obligations, they will not get Choice of Accommodation under the parallel and similarly though not identically worded regulations for that notion – because they will have GOT choice, by signing the tenancy for themselves or through a deputy. Without the magic words on the care plan, they will be stuck in limbo between two councils, neither of whom wishes to treat the person as their legal funding responsibility.

The trouble that this all points to, is lack of public debate about the purpose of the changes, in my view.

Sure, I understand absolutely that councils were fighting the building of bespoke supported living developments on their patch, because they magnetised people with extensive care needs to the area – and their o/r changed when they came as tenants. If the old council now remains responsible, then logically, it should all be fine, and the nation’s housebuilders can start building again….and care homes will need to look lively, and diversify…

But the pre-Act rhetoric behind ‘continuity’ policy was pretty non-specific – circling round the idea that people with disabilities should be able to live ‘wherever they want to’, just like the rest of us. That’s not even true, though, for the rest of us, is it?!! We all have to cut our cloth in proportion to our means, and living in Chelsea just ain’t the same as living in Blackpool, rent wise,even if we haven’t got care needs. If we have special circumstances in our lives, that compel some planning, before packing a suitcase, then of course we have to think about what we’d be entitled to get when we got there. And if the rent is going to be oddly low, because of HB being seen as the route for paying for it, and because the specialist provider is the only one in the area to be able to cope with specialist needs autistic, or personality disordered, or epileptic clients, then of course the CARE costs are going to be unusually high. This is not rocket science.

Conclusions for now!

In conclusion, the three most serious legal issues are these:

1. Can a council lawfully apply an In Borough provision policy, in general, and in particular, to an individual person who is eligible, given that the deeming rules exist and seem to enable a person to move whilst remaining tied to their old council, supposedly for the benefits that that brings?

Can the council KEEP them there, on grounds of cost, and still be said to be promoting their wellbeing? (that question is asked, leaving aside the separate and pre-Act Human Rights issues, and the links the person may have in the area where the council organised for them to be schooled until they were 25!)

We all know that best value and cost is legally relevant to HOW to meet needs, but that’s cost in relation to needs. What if the person WANTS to live in a particular area, as a tenant, but cannot actually hope to establish that they really need to?

2. And where is a person ordinarily resident, if they have got fed up of waiting for the old council’s commissioner to persuade/bully a provider, elsewhere, into accepting a bearably low care fee, and the person has just upped sticks and bloomin’ well gone, signed the tenancy, and moved in?

Remember, in those circumstances, they won’t have got a finalised care plan with the magic words on it, so “It’s not US”, the old council would say – but the new council won’t have thought to budget for people coming in these circumstances, and won’t want to start paying the fee of the provider that it has long loathed for having had the courage to take a business risk and build this kind of provision, on that council’s patch! In that situation, the continuity provisions in ss37 and 38 may be the only ones that can apply!

3.  The third one is too much for me before caffeine – it’s how these rules fit in with the status of a s117 Mental Health Act client, who might have been provided with this sort of specified accommodation before they were sectioned, and thus not need accommodation in their s117 Care Plan. Another day, another blog for that one, methinks!

The Care Act was supposed to simplify matters for people with disabilities and for councils too, remember!! I don’t quite know how it came to this, therefore, when we had 3 years to sort this out, before the Act came into force.

For me, though, the one good thing is that the statutory disputes resolution process in the Care Act for councils fighting each other will mean that the Secretary of State has to make the decisions, according to the rules and guidance that the Department of Health itself drafted! 

That should be interesting, then! The DH is committed to publishing its decisions, but they themselves can be judicially reviewed, if they don’t get the application of the law correct!

For now, the practical consequences are these:

  • RSL and other Housing Providers aiming to provider care in the setting will have to have contractual relationships with commissioners from all over the place, instead of just the one, on the spot;
  • Young persons’ transition workers will have to understand the law of ordinary residence much better (and we are still awaiting the Supreme Court’s decision in the Wiltshire v Cornwall v South Gloucestershire case, I think);
  • Very high cost specialist care providers will have to decide whether to let people into possession or not, without o/r being agreed – then getting one or the other council, somehow, to seek an interim injunction from the Administrative Court to enforce care funding from SOMEONE in the meantime!