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!

 

 

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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

  1. neil harrison

    Very thought provoking, cant wait to hear about the 117 intricacies, the current situation we find very difficult to provide 117 aftercare to someone at the other side of the country, not really in tune with the wellbeing principles of the care act if your nearest support is some 300 miles away.

    Regards

    1. Belinda SchwehrBelinda Schwehr Post Author

      Of course, but the more I talk to s117 staff the more I think there’s a division of opinion as to the pros and cons of either system. That is, it’s a toss-up, between the notion that a s117 client really needs someone on hand, locally, to do the real job aftercare is intended for, versus the benefits of a key worker with in-depth knowledge of one’s history and stressors, maybe, which one only gets from responsibility having continued long term….

      Ideally, one would have both, and that would be possible maybe, if anyone had ever come up with a piece of software that tracked the time spent by ONE authority doing the key-working and co-ordination stuff on the spot, but as the agent, and on behalf of the OTHER – the distant but legally responsible, s117 authority, I am thinking…?

      What do other people think, I wonder?

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