CARE ACT 2014
The Act helps the local authority identify a person’s ordinary residence for purposes of providing care and support. It also provides a mechanism for the local authority to reclaim money spent providing care and support to someone for whom they were not in fact responsible.
See also Ordinary Residence Case Studies
- 1. Introduction
- 2. How does Ordinary Residence affect the Provision of Care and Support?
- 3. How to Determine Ordinary Residence
- 4. Cases where a Person Lacks Capacity
- 5. Persons of No Settled Residence
- 6. Ordinary Residence when arranging Care and Support in another area
- 7. NHS Accommodation
- 8. Mental Health Aftercare
- 9. Other Common Situations
- 10. Process for Seeking a Determination
- 11. Financial Adjustments between Local Authorities
- 12. Reconsidering Disputes
It is critical to the effective operation of the care and support system that local authorities understand for which people they are responsible, and that people themselves know who to contact when they need care and support. Many of a local authority’s care and support responsibilities relate to the entire local population (for instance, in relation to information and advice or preventive services see Preventing, Reducing or Delaying Needs and Information and Advice). However, when it comes to determining which individuals have needs which a local authority is required to meet, the local authority is only required to meet needs in respect of an adult who is ‘ordinarily resident’ in their area (or is present there but has no settled residence (see Section 5, Persons of no Settled Residence).
Ordinary residence is crucial in deciding which local authority is required to meet the care and support needs of adults and their carers. Whether the person is ordinarily resident in the area of the local authority is a key test in determining where responsibilities lie between local authorities for the funding and provision of care and support.
Ordinary residence is not a new concept – it has been used in care and support for many years. However, there have been in the past and will continue to be cases in which it is difficult to establish precisely where a person is ordinarily resident, and the Care and Support Statutory Guidance (2016) is intended to help resolve such situations. The Care Act 2014 also extends the principle of ‘deeming’ certain people to be ordinarily resident in a particular local authority’s area when some types of accommodation are arranged for them in another area, and the guidance also describes how these provisions should be put into practice. Local authorities cannot escape the effect of the deeming provision where they are under a duty to provide or to arrange for the provision of services.
This chapter should also be read with Care and Support Statutory Guidance Annexes, which provide further detailed guidance on specific situations and circumstances which may arise, and where the question of ordinary residence may be unclear.
2. How does Ordinary Residence affect the 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.
The test for ordinary residence, which determines which local authority would be responsible for meeting needs, applies differently in relation to adults with needs for care and support and 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.
Establishing responsibility for the provision of care and support for carers, therefore, requires the local authority to consider the ordinary residence of the adult needing care. However, 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 on and share the provision of support. For example, where there are services or interventions that directly relate to the caring responsibilities towards one individual (for example equipment installed in the carer’s home to accommodate one of the people), then it would be a straightforward matter of the relevant authority being responsible. Where that same piece of equipment serves for other people being cared for, then the local authorities concerned should agree how to arrange the package. 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.
The Care Act contains all the necessary powers for joint assessments and support planning, plus the duties to cooperate to provide a mechanism for one of the authorities to require the cooperation of the other, if needed.
Local authorities must determine whether an individual is ordinarily resident in their area following he needs or carer’s assessment, and after determining whether the person has eligible needs (see Eligibility).
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.
3. How to Determine Ordinary Residence
The local authority’s responsibility for meeting a person’s eligible needs under the Care Act is based on the concept of ordinary residence. However, there is no definition of ordinary residence in the Care Act. Therefore, the term should be given its ordinary and natural meaning.
In most cases, establishing the person’s ordinary residence is a straightforward matter. However, this is not always the case. There will be circumstances in which ordinary residence is not as clear cut, for example when people spend their time in more than one area, or move between areas. Where uncertainties arise, local authorities should always consider each case on its own merits.
The concept of ordinary residence involves questions of both fact and degree. Factors such as time, intention and continuity (each of which may be given different weight according to the context) have to be taken into account. The courts have considered the meaning of ordinary residence and the leading case is that of Shah v London Borough of Barnet (1983). In this case, Lord Scarman stated that:
unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that ordinarily resident refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.
Local authorities must always have regard to this case when determining the ordinary residence of adults who have capacity to make their own decisions about where they wish to live. Local authorities should in particular 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.
For people who lack capacity to make decisions about their accommodation and for children transitioning into adult social care services, the judgment in the case of R (on the application of Cornwall Council) Secretary of State & Ors  UKSC46 (Cornwall) is relevant because a person’s lack of mental capacity may mean that they are not able to voluntarily adopt a particular place of residence.
4. Cases where a Person Lacks Capacity
All issues relating to mental capacity should be decided with reference to the Mental Capacity Act 2005 (MCA). Under this Act, it must be assumed that adults have capacity to make their own decisions, including decisions relating to their accommodation and care, unless it is established to the contrary.
The test for capacity is specific to each decision at the time it needs to be made, and a person may be capable of making some decisions but not others. It is not necessary for a person to understand local authority funding arrangements to be able to decide where they want to live.
If it can be shown that a person lacks capacity to make a particular decision, the MCA makes clear who can take decisions on behalf of others, in which situations and how they should go about doing this. For example, if a person lacks capacity to decide where to live, a best interest’s decision about their accommodation should be made under the MCA. 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 in the best interests of the person who lacks capacity. The Act sets out how to work out the best interests of a person who lacks capacity and provides a checklist of factors for this purpose.
Where a person lacks the capacity to decide where to live and uncertainties arise about their place of ordinary residence, direct application of the test in Shah will not assist since it requires the voluntary adoption of a place.
In this case the facts of the person’s case must be considered, including physical presence in a particular place and the nature and purpose of that presence but without requiring the person has voluntarily adopted the place of residence.
The Supreme Court judgment in Cornwall, held that a child who had been placed in foster care in local authority A, which had been arranged by local authority B under the Children Act 1989 continued to be ordinarily resident in local authority B when he reached 18 years of age. The Supreme Court set out that the underlying purpose behind provisions in both children’s and adult legislation is 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 [Para. 54 of the Supreme Court Judgment].
5. Persons of No Settled Residence
Where doubts arise in respect of 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.
Local authorities have a duty to meet the eligible needs of people if they are present in its area but of no settled residence. In this regard, people who have no settled residence, but are physically present in the local authority’s area, should be treated in the same way as those who are ordinarily resident.
A local authority may conclude 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. For further information on people returning to England after living abroad, (see Annex H: British citizens resuming permanent residence in England after a period abroad).
See also Ordinary Residence Case Studies.
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 that are specified in the legislation. If the specified accommodation in which the care is provided is located in the area of another authority, it is important that there is no question as to which local authority is responsible for meeting the person’s needs.
The Care Act, and the specified accommodation regulation set out what should happen in these cases, and specify which local authority is responsible for the person’s care and support. Together, these create the principle that the person placed ‘out of area’ is deemed to continue to be ordinarily resident in the area of the first authority, and does not acquire an ordinary residence in the ‘host’ or second authority. The local authority which arranges the care in the specified accommodation, therefore, retains responsibility for meeting the person’s needs.
The specified accommodation regulations specify the types of accommodation to which this provision applies. The specified accommodation regulations explicitly set out three types of accommodation:
- nursing homes/care homes:accommodation which includes either nursing care or personal care;
- supported living/extra care housing this is either:
- specialist or adapted accommodation: this means accommodation which includes features that have been built in or changed to in order to meet the needs of adults with care and support needs. This may include safety systems and features which enable accessibility and navigation around the accommodation and minimise the risk of harm, as appropriate to the individual;
- accommodation which is intended for occupation by adults with care and support needs, in which personal care is also available, usually from a different provider;
- shared lives schemes: accommodation which is provided together with care and support for an adult by a shared lives carer, approved by the scheme, in the shared lives carer’s home under the terms of an agreement between the adult, the carer and any local authority responsible for making the arrangement. The shared lives carer will normally be providing personal care but they will not need to provide it in every case.
Where an adult’s care and support needs can only be met if they are living in one of the specified types of accommodation and the accommodation arranged is in another area, then the principle of ‘deeming’ ordinary residence applies. This means that the adult is treated as remaining ordinarily resident in the area where they were resident immediately before the local authority began to provide or arrange care and support in any type of specified accommodation. The consequence of this is that the local authority which first provided that care and support will remain responsible for meeting the person’s eligible needs, and responsibility does not transfer to the authority in whose area the accommodation is physically located. However, in circumstances where the person moves to accommodation in a different area of their own volition, without the local authority making the arrangements, they would be likely to acquire ordinary residence in the area of the authority where the new accommodation is situated. The deeming rule does not apply where a person has chosen to arrange their own care in a type of specified accommodation in another area, and then later asks for local authority support.
Need should be judged to be ‘able to be met’ or of a kind that ‘can be met only’ through a specified type of accommodation where the local authority has made this decision following an assessment and a care and support planning process involving the person. Decisions on how needs are to be met, made in the latter process and recorded in the care and support plan, should evidence that needs can only be met in that manner. Where the outcome of the care planning process is a decision to meet needs in one of the specified types of accommodation and it is the local authority’s view it should be assumed that needs can only be met in that type of accommodation for the purposes of ‘deeming’ ordinary residence. This should be clearly recorded in the care and support plan. The local authority is not required to demonstrate that needs cannot be met by any other type of support. The local authority must have assessed those needs in order to make such a decision – the ‘deeming’ principle therefore does not apply to cases where a person arranges their own accommodation and the local authority does not meet their needs.
The first local authority’s responsibility will continue in this way for as long as the person’s eligible needs are met by a specified type of accommodation. This will include situations where the person moves between care and support provided in different specified types of accommodation in another (or more than one other) area.
As an example, if the first authority arranges care and support in one type of accommodation in the area of the second authority (for example in a shared lives scheme or a care home) and the person’s needs change, leading to them moving into another type of accommodation still in the second authority’s area (for example a supported living scheme), the person would continue to be ordinarily resident in the area of the first authority, and that authority would remain responsible for the care and support. However, should the person’s needs no longer require the care and support to be provided in a specified type of accommodation, then it is likely that their ordinary residence will change, and the first local authority will no longer retain responsibility.
As part of their involvement in the planning process, where the local authority is arranging the person’s accommodation the person will also have a right to make a choice about their preferred accommodation (see Charging and Financial Assessment and Annex A: Choice of Accommodation and Additional Payments). This right allows the person to make a choice about a particular individual provider, including where that provider is located. Provided that certain conditions are met, the local authority must arrange for the preferred accommodation. The ordinary residence rules described above will apply when the person’s preferred accommodation is in the area of another local authority.
The ordinary residence ‘deeming’ principle applies most commonly where the local authority provides or arranges care and support in the accommodation directly. However, the principle also applies where a person takes a direct payment and arranges their own care (since the local authority is still meeting their needs). In such cases, the individual has the choice over how their needs are met, and arranges their own care and support. If the care plan stipulates that person’s needs can be met only if the adult is living in one of the specified types of accommodation and the person chooses to arrange that accommodation in the area of a local authority which is not the one making the direct payments then the same principle would apply; the local authority which is meeting the person’s care and support needs by making direct payments would retain responsibility. However, if the person chose accommodation that is outside what was specified in the care plan or of a type of accommodation not specified in the regulations, then the ‘deeming’ principle would not apply.
At present, direct payments may not be made to meet needs by the provision of long term care and support in a care home. However, the individual may request a direct payment to meet needs for other types of accommodation specified in the regulations. Where someone chooses a type of supported living accommodation, the direct payment would be for the care but usually not the accommodation. Local authorities should therefore ensure that they have in place effective, proportionate processes for recording how the individual chooses to meet their needs.
If a local authority arranges care and support in a type of accommodation as specified in the regulations in another area, or becomes aware that an individual with a direct payment has done so themselves, the authority should inform the host authority, to ensure the host authority is aware of the person in their area. The first authority should ensure that satisfactory arrangements are made before the accommodation begins for any necessary support services which are provided locally, such as day care, and that clear agreements are in place for funding all aspects of the person’s care and support.
In practice, the first local authority may enter into agreements to allow the authority where the accommodation is located to carry out functions on its behalf. This may particularly be the case where the accommodation is located some distance away, and some functions can be performed more effectively locally. For example a carer may live in a different authority from the person he or she is caring for. Local authorities may make arrangements to reimburse to each other, any costs occurred through such agreements
There may be occasions where a provider chooses to change the type of care which it provides, for instance to deregister a property as a care home and to redesign the service as a supported living scheme. Where the person remains living at the same property, and their needs continue to be met by the new service, then ordinary residence should not be affected, and the duty to meet needs will remain with the first authority. This will occur even if the person temporarily moves to another address whilst any changes to the property occur.
7. NHS Accommodation
Where a person goes into hospital, or other NHS accommodation, there may be questions over where they are ordinarily resident, especially if they are subsequently discharged into a different local authority area. For this reason, the Care Act makes clear what should happen in these circumstances.
A person for whom NHS accommodation is provided is to be treated as being ordinarily resident in the local authority where they were ordinarily resident before the NHS accommodation was provided. This means that where a person, for example, goes into hospital, they are treated as ordinarily resident in the area where they were living before they went into hospital. This applies regardless of the length of stay in the hospital, and means that responsibility for the person’s care and support does not transfer to the area of the hospital, if this is different from the area in which the person was ordinarily resident previously.
This requirement also applies to NHS accommodation in Northern Ireland, Scotland and Wales. If a person who is ordinarily resident in England goes into hospital in Scotland, Wales or Northern Ireland, their ordinary residence will remain in England (in the local authority in which they ordinarily resided before going into hospital) for the purposes of responsibility for the adult’s care and support.
8. Mental Health Aftercare
Under section 117 of the Mental Health Act 1983 (‘the 1983 Act’), local authorities together with clinical commissioning groups have a joint duty to arrange the provision of mental health aftercare services for people who have been detained in hospital for treatment under certain sections of the 1983 Act. Aftercare services must have both the purposes of ‘meeting a need arising from or related to the person’s mental disorder’ and ‘reducing the risk of a deterioration of the person’s mental condition and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder.’ The range of services which can be provided is broad.
The duty on local authorities to commission or provide mental health aftercare rests with the local authority for the area in which the person concerned was ordinarily resident immediately before they were detained under the 1983 Act, even if the person becomes ordinarily resident in another area after leaving hospital.
Although any change in the patient’s ordinary residence after discharge will affect the local authority responsible for their social care services, it will not affect the local authority responsible for commissioning the patient’s section 117 aftercare. Under section 117 of the Act, as amended by the Care Act 2014, if a person is ordinarily resident in local authority area (A) immediately before detention under the Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their aftercare. However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their aftercare when they are discharged from hospital.
If, however, a patient is not ordinarily resident in England or Wales immediately before being detained, the local authority responsible for commissioning the patient’s aftercare will be the one for the area in which the patient is resident. Only if that cannot be established, either, will the responsible local authority be the one for the area to which the patient is sent on discharge. However, local authorities should only determine that a person is not resident anywhere as a last resort.
Section 39(4) of the Care Act is a deeming provision that applies to any person who is provided with accommodation as part of their aftercare. The effect of this is that the person is deemed to be ordinarily resident in the area of the local authority responsible for the person’s aftercare. This applies to any person who receives aftercare on leaving hospital on or after 1 April 2015, irrespective of the date that they were discharged from detention under any of the relevant provisions.
There are several provisions in the Care Act which deem a person to be ordinarily resident in a particular local authority’s area in specified circumstances for the purposes of Part 1 of the Act. These deeming provisions do not apply to section 117 of the 1983 Act, nor have they been incorporated into section 117 of the 1983 Act.
If there is a dispute between local authorities in England about where the person was ordinarily resident immediately before being detained, this will be determined by the process set out in the Care Act. Disputes between a local authority in England and a local authority in Wales will be determined by the Secretary of State for Health or the Welsh Ministers. The Secretary of State and the Welsh Ministers have published arrangements for determining which of them will determine such disputes.
9. Other Common Situations
9.1 Temporary absences
Having established ordinary residence in a particular place, this should not be affected by the individual taking a temporary absence from the area. The courts have held that temporary or accidental absences, including for example holidays or hospital visits in another area, should not break the continuity of ordinary residence, and local authorities should take this into account.
The fact that the person may be temporarily away from the local authority in which they are ordinarily resident, does not preclude them from receiving any type of care and support from another local authority if they become in urgent need (see Annex H: Ordinary Residence for further guidance regarding persons in ‘urgent need’). Local authorities have powers to meet the needs of people who are known to be ordinarily resident in another area, at their discretion and subject to their informing the authority where the person is ordinarily resident.
9.2 People with more than one home
Although in general terms it may be possible for a person to have more than one ordinary residence (for example, a person who divides their time equally between two homes), this is not possible for the purposes of the Care Act. The purpose of the ordinary residence test in the Act is to determine which single local authority has responsibility for meeting a person’s eligible needs, and this purpose would be defeated if a person could have more than one ordinary residence.
If a person appears genuinely to divide their time equally between two homes, it would be necessary to establish (from all of the circumstances) to which of the two homes the person has the stronger link. Where this is the case, it would be the responsibility of the local authority in whose area the person is ordinarily resident, to provide or arrange care and support to meet the needs during the time the person is temporarily away at their second home.
Further scenarios which may occur are set out in Annex H: Ordinary Residence, and may be used by local authorities to support cases where there may be uncertainty as to an individual’s ordinary residence.
9.3 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 (for further information on self-funders, see Annex H: Ordinary Residence).
9.4 Resolving ordinary residence and continuity of care disputes
In the majority of cases, determining ordinary residence should be straightforward. However, there will be occasions where a person’s residency status is more complicated to establish.
A question as to a person’s ordinary residence can only arise where two or more local authorities are in dispute about the place of ordinary residence of a person. In such a case, the authorities may apply for a determination to the Secretary of State or appointed person. Where the local authorities concerned are in agreement about a person’s ordinary residence, but the person is unhappy with the decision, the person would have to pursue this with the authorities concerned and could not apply to the Secretary of State or an appointed person for a determination.
The Care and Support (Disputes Between Local Authorities) Regulations 2014 set out the procedures local authorities must follow when disputes arise between local authorities regarding a person’s ordinary residence. When a dispute between two or more local authorities occurs, local authorities must take all reasonable steps to resolve the dispute between themselves. It is critical that the person does not go without the care they need, should local authorities be in dispute. The local authority that is meeting the needs of the adult or the carer on the date that the dispute arises, must continue to do so until the dispute is resolved. If no local authority is currently meeting the person’s needs, the local authority where the person is living or is physically present must accept responsibility until the dispute is resolved. The local authority which has accepted provisional responsibility is referred to as the ‘the lead authority’.
The lead authority must identify all the authorities involved in the dispute and coordinate an ongoing dialogue between all parties involved. The parties involved must provide the lead authority with contact details of a named person in relation to the dispute. The lead authority must be responsible for the coordination of any information that may be relevant to the dispute and keep all parties informed of any developments that may be relevant to the dispute. The lead authority must also keep the person, or their carer if appropriate, fully informed of dispute in question and of progress regarding any resolution.
If, having taken appropriate legal advice and considered the position, and followed the procedure set out in the disputes regulations, the authorities are still unable to resolve a particular dispute, they must apply for a determination to the Secretary of State or appointed person. Applications for determinations must be submitted by the lead authority before or by the end of a period of four months from the date when the dispute arose. The provisional acceptance of responsibility by the lead authority will not influence any determination made by the Secretary of State.
10. Process for Seeking a Determination
The regulations place a duty on the parties involved in the dispute to provide specified information to the Secretary of State or appointed person. The lead local authority must make a request in writing to the Secretary of State or appointed person, together with a statement of facts and other documentation. The statement of facts must include certain specified information as set out in the regulations. Local authorities should endeavour to produce a statement of facts that is jointly agreed. If the parties cannot agree on particular information, they should make clear what information the parties say is agreed, what information the parties say is in dispute and, as regards the latter, what the parties’ respective versions of the facts are. Local authorities should ensure that all documents sent to the Secretary of State or appointed person are in an indexed paginated bundle. Copies of any further documents required will need to be added to the index for insertion into the bundle.
The Secretary of State or appointed person will not allow ordinary residence disputes to run on indefinitely once they have been referred for a determination. The Secretary of State – or appointed person – once satisfied that the parties have had adequate opportunity to make representations, will proceed to make a determination. Any local authority failing to have due regard to a determination by the Secretary of State or appointed person, would put itself at risk of a legal challenge by the resident or their representative or the other local authorities to the dispute.
Local authorities may wish to seek legal advice before making an application for a determination, although they are not required to do so. If legal advice is sought, local authorities may, in addition to the required documentation, provide a separate legal submission. Where legal submissions are included, these should be exchanged between the local authorities in dispute and evidence of this should be supplied to the Secretary of State. All applications for determinations by the Secretary of State should be sent to:
Department of Health and Social Care
Quality and Workforce Team
Social Care Policy Division
Department of Health and Social Care
Area 313B, Richmond House,
London SW1A 2NS
If during a determination of the ordinary residence dispute by the Secretary of State or appointed person, a local authority in dispute is asked to provide further information to the Secretary of State or appointed person, that local authority must provide that information without delay.
If the local authorities involved in the dispute reach an agreement whilst the Secretary of State is considering the determination, they should notify the Department of Health and Social Care at the above address. Both parties must confirm that the dispute has been resolved after which the determination will be closed down.
If a determination by the Secretary of State or an appointed person subsequently finds another local authority to be the authority of ordinary residence, the lead local authority may recover costs from the authority which should have been providing the relevant care and support.
Regardless of when the Secretary of State is asked to make a determination, it will be made in accordance with the law that was in force at the relevant date, in respect of which ordinary residence falls to be determined. Therefore, where ordinary residence is to be determined in respect of a period which falls before 1st April 2015, then the determination will be made in accordance with Part 3 of the National Assistance Act 1948. If, in respect of a period on or after 1st April 2015, then the determination will be made in accordance with the Care Act.
The Department of Health makes available anonymised copies of determinations it has made. Each case must be considered in light of its own particular facts, but past determinations may provide local authorities with useful guidance when faced with similar circumstances.
11. Financial Adjustments between Local Authorities
Sometimes a local authority has been paying for a person’s care and support, but it later becomes apparent (for example as a result of an ordinary residence determination) that the person is in fact ordinarily resident elsewhere. In these circumstances the local authority which has been paying for that person’s care may reclaim the costs from the local authority where the person was ordinarily resident.
This can occur in cases where it is not clear initially where the person is ordinarily resident. In order to ensure that the individual does not experience any delay to their care due to uncertainty over their ordinary residence, local authorities should be able to recover any losses due to initial errors or delays in deciding where a person is ordinarily resident. This also extends to costs spent supporting the carer of the person whose ordinary residence was in dispute.
12. Reconsidering Disputes
If further facts come to light after a determination has been made, local authorities may consider it appropriate for the Secretary of State or appointed person to reconsider the original determination. As a consequence of this, a different determination may be substituted. This may mean that payments made from one local authority to another as a consequence of the first determination will need to be repaid.
Any review of the determination must begin within three months of the date of the original determination. This is needed to ensure clarity and fairness in the process and minimise the amount of time taken for determinations to be made.
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