Passing the “ordinary residence” buck

A local authority's duty to provide accommodation, personal care and welfare services under sections 21 and 29 of the National Assistance Act 1948 is owed to those (i) whose needs assessment qualifies them for such services and (ii) are 'ordinarily resident' in its area (s24 of the 1948 Act).

To any lawyer advising on community care, the phrase 'ordinary residence' will be both familiar and dreaded. It immediately evokes the spectre of an unseemly dispute between two local authorities. The dispute always turns upon the same fundamental question: which authority should pay for a care user's residential and/or care services? The answer is, theoretically, simple: whichever authority owes the legal duty to pay.

The problem lies in ascertaining who should shoulder that burden by reference to the concept of ordinary residence. That problem's roots lie, in many cases, with the 'deeming provision' set out at s24(5) of the 1948 Act. This provides that a person 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'.

Whatever the dispute's ultimate cause, ordinary residence is always the decisive factor in its resolution. The concept goes undefined within the 1948 Act. Lord Scarman provided its canonical definition in R v Barnet LBC ex parte Shah [1983] 1 All ER 226: 'I unhesitatingly subscribe to the view that 'ordinary residence' 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.'

Subsequent cases have confirmed that the term must be given its ordinary and natural meaning; it involves questions of fact and degree and factors such as time, intention and continuity, each of which may be given different weight according to the context. The determination of ordinary residence is thus highly fact-sensitive. Hence why it is such a rich source of disputes.

Provided guidance

Guidance as to the concept's application is provided by Local Authority Circular (93) 7: Ordinary Residence. This confirms that the general rule, by reason of the deeming provision, is that the placing authority remains responsible for all residential care placements. That rule will not apply if an individual arranges privately to move into residential accommodation in a new authority's area without the old authority's involvement. Such a person will become ordinarily resident in the new authority's area and, should any future care needs be required, the new authority will have to meet them. Again, the Circular underlines this.

However, that guidance, now over 14-years-old, has not kept pace with modern methods of care provision. It addresses placements in 'a private or voluntary home', yet many modern needs assessments recommend entirely different forms of accommodation. Those receiving Outreach Support Services typically hold their own tenancies with housing associations, paid for by housing benefit, while their welfare needs are met by the local authority. Supporting People programmes, launched in 2003, follow a similar model.

If a needs assessment dictates that a Supporting People scheme is best for the care user, but that the most appropriate scheme lies outside the assessing authority's area, will the deeming provision bite and the assessing authority foot the bill?

Despite the regularity of these disputes, case law gives no assistance in answering such questions. The reason why lies with s32(3) of the 1948 Act, which provides that any question as to a person's ordinary residence shall be determined by the secretary of state. The result of this in-built dispute resolution mechanism is a vacuum of jurisprudence on a hotly disputed term.

Resolving disputes

Many authorities prefer to resolve their disputes without recourse to the referral procedure, not renowned for its speed of turnaround. Those that do obtain determinations generally take them away and quietly put them into effect. An ordinary residence dispute will only meet the scrutiny of the courts if the secretary of state's determination is subjected to judicial review. Few are.

Local authority lawyers have therefore long been forced to join up a host of dots when advising on ordinary residence disputes. While that need has been acute in relation to Supporting People-type programmes, an insufficiency of guidance blights all aspects of lawyers' advice in this area. The words 'ordinary residence' invariably herald resort to an uncomfortable degree of supposition, inference and estimation. The sums involved often run into thousands of pounds a week, which only increases the lawyer's perspiration.

A new dawn

A welcome light has recently been shone on this hitherto dusky area but, like gold at the end of the rainbow, it is not easily found.

In 2005 Paul Goodman MP, now shadow minister for childcare, asked the secretary of state for health which local authorities had sought determinations, and on what matters, in each year since 2000. A 'holding answer' was provided to the Commons, listing 16 determinations as to ordinary residence.

The Department of Health (DoH) received a Freedom of Information (FoI) request for sight of all determinations listed and for any others made since the date of the question. In October 2006 the DoH responded by placing 12 anonymised determinations on its website.

While the DoH's response falls short of a full answer to the request, the impact for lawyers remains enormous. It is akin to the simultaneous publication of 12 leading cases. The determinations have not been judicially reviewed, so either permission was refused or the protagonist authorities accepted their validity. The latter is more likely since pains have clearly been taken to make the determinations as judicial review-proof as possible. They are carefully reasoned and studiously cite all the correct case law. One still unpublished determination was at stake in R (ex parte London Borough of Greenwich) v Secretary of State for Health [2006] EWHC 2576 (Admin). Upholding that determination, Charles J opined that 'The determination of the secretary of state has to be read generously'.

Against that background, lawyers will be hard pressed to find better guidance on complex ordinary residence disputes than on the Department of Heath's website (see box). If you work in this area and this comes as news, print out the determinations and file them somewhere near at hand. There follows an overview and analysis of some of the determinations' more striking aspects.

Beware the deeming provision

Disputes in which the care user's housing has always remained within the areas of the two disputing authorities (as opposed to those of some third or fourth authority) have met with a consistent response. Of the 12 published determinations, seven disputes fall into this category (Determinations 1 of 2004; 1, 2, 5 and 7 of 2005 and 2 and 3 of 2006). In all seven, the council in which the care user resided at the date of the determination was unable to avail itself of the deeming provision. The factual considerations in each case swayed towards a conclusion that the care user's home was wherever he laid his head at the time. Lawyers should approach the deeming provision with circumspection in these cases.

Determination 8 of 2005 provides a particularly salutary lesson. Council B placed the care user in a community centre in the area of Council A. It did so with Council A's consent and Council B met the costs of the placement. Subsequently, without Council B's involvement, the community centre gave notice that the care user had to leave.

The care user's parents, who lived in Council A's area, informed the centre and one of Council A's workers that they would look after their daughter for a few months, but not in the long term. She remained with her parents over the period 15 April'“13 July 2001, whereupon she began a permanent placement at a home in the area of Council B.

That short period during which the care user resided with her parents in Council A's area 'broke the continuity of care provided in residential accommodation pursuant to section 21'. During that period she was 'ordinarily resident at her parents' home in Council A's area for the settled purpose of being cared for by them until another placement could be found'. The deeming provision's benefaction thus swung cruelly from Council A to Council B.

Strikingly, six of the 12 determinations relate to disputes arising upon a care user's 18th birthday (Determinations 1 of 2004; 1, 3, 4, 6 of 2005 and 2 of 2006). The deeming provision reared its head in each. LAC (93) 7 provides scant guidance on this situation, stating only that authorities can reasonably have regard to the definition of ordinary residence in the Children Act 1989 in determining where responsibility for future delivery of services might lie. Importantly, under the 1989 Act any period in which the child is being provided with accommodation at a school or by or on behalf of a local authority is to be disregarded for the purposes of determining ordinary residence.

The published determinations make plain that, notwithstanding the admissibility of the 1989 Act definition in deciding a young adult's ordinary residence, the key question under the deeming provision remains: where was the child ordinarily resident within the meaning of the 1948 Act immediately before accommodation or welfare services were provided under the 1948 Act?

Determination 2 of 2006 illustrates this distinction starkly. The care user's mother resided in Council A. Under the 1989 Act, the care user was therefore ordinarily resident in Council A (a young child/learning disabled adult's ordinary residence being presumed to be with his family: R v Waltham Forest London Borough Council ex parte Vale, The Times 25.02.85).

However, this did not determine his ordinary residence under the 1948 Act. The care user had been competent to choose his own residence by reference to the test set out in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402. He had been living in Council B for four years and wished to continue doing so. As such, applying Lord Scarman's test in Shah, he was nonetheless ordinarily resident in the area of Council B.

That decision should be contrasted with Determination 3 of 2005, which illustrates how the determination of ordinary residence under the 1989 Act may yet be decisive in assessing ordinary residence under the 1948 Act.

Council A and Council B were at one time the same entity. Upon the predecessor authority's division, the child was left in foster care in Council A while his parents found themselves in Council B. The child had not been taken into care but had rather been accommodated by the predecessor Council under a voluntary arrangement. He was subsequently placed by Council A into accommodation situated in Council C provided by a trust. His parents had at all times lived in Council B. Throughout his life, they had maintained contact and participated in his care planning and held no intention of relinquishing parental responsibility. The child's disabilities were such that he was incapable of forming his own intention of where he wished to live.

On turning 18, he remained ordinarily resident in Council B for the purposes of the 1948 Act 'because that is where he was ordinarily resident prior to being provided with accommodation by or on behalf of a local authority under the 1989 Act, and there are no factors that lead to a different conclusion in relation to [his] ordinary residence for the purposes of the 1948 Act.'

These determinations make clear that an idiosyncratic '1948 Act' factor running contrary to the '1989 Act' factors '“ such as the ability to form a volition as to residence '“ will be sufficient to override the determination of ordinary residence under the 1989 Act.

Five of the six 'young adults' disputes relate to those placed in foster care. Determinations 1 of 2004 and 1 of 2005 were factually similar. In both, the care user's strong relationship with his foster parents and his non-existent relationship with his biological parents proved to be decisive.

In the former, the child had been placed with foster carers in the area of Council A by Council B. His need for services under the 1948 Act arose when his foster carers, despite wishing to maintain contact, could no longer be his main carers. At that point, Council A sought Council B's acceptance of financial responsibility, which Council B successfully contested.

The care user had lived in Council A with his foster carers for over four years, had enjoyed good relations with them, been happy living with them and was happy to remain doing so. At the time of the determination he had had no contact with his father since 1998. This was unlikely to change. He was therefore in Council A voluntarily and for settled purposes as part of the regular order of his life. While he had severe learning disabilities, they did not compromise his ability to form these intentions.

Determination 1 of 2005 was similar on the facts, except that the care user's learning disabilities were held to be such that the care user ought, following Vale, to be treated as if he were a small child. The care user had had no contact with his natural parents since 1987 and this lay at the forefront of the determination. On his 18th birthday, he had resided with his foster carers for nearly 17 years and the reality was that the Council into which he had been placed was where he had lived his life and his home was with his foster carers. After his 18th birthday, that Council had to pay.

In Determination 4 of 2005, parental responsibility was shared between Council A and the child's mother pursuant to a care order made under s31 of the Children Act 1989. At the time of the determination, the care user was living in foster care in Council D and the child's mother lived in Council B. Council A and Council B were in dispute. The Vale presumption that the ordinary residence of a young child or a learning disabled adult is with his or her family was held not to apply. While the care user enjoyed significant contact with her mother and made regular day visits to her home in Council B, that was not her 'base' in any meaningful sense. She had never lived in Council B; it was not a place from where she would go out and to where she would return. It was not where she was 'looked after' or had her affairs managed as 'part of the regular order of her life for the time being'. Council A had to pick up the tab.

As these examples demonstrate, the determination of where a person is ordinarily resident on turning 18 is perhaps the most fact-sensitive and complicated of them all. The need for tailored legal advice becomes critical in these instances.

Supporting people and tenancies

Perhaps the biggest news buried within the DoH's FOI release is that the position regarding schemes such as Supporting People programmes has now finally been clarified.

Determinations 5 of 2005 and 3 of 2006 make plain that where a care user originating from Council A enters into a tenancy agreement in Council B's area, the rent for which may in part be paid for out of housing benefit, but in any event not by Council A, the care user will cease to be ordinarily resident in Council A. Council B will thus have to pay for any ongoing welfare services provided under s29 of the 1948 Act.

Both determinations provide various reasons for this but they share an important common basis. Where accommodation is provided by a body other than the local authority which has a duty to provide it, section 26 of the 1948 Act is engaged. Arrangements with such a third party can only amount to section 21 accommodation where they satisfy the restrictions in section 26. Subsections (2) & (3A) of section 26 entail that money must pass from the authority in order for the accommodation to be provided under section 21.

In reaching this conclusion, both determinations cite Lord Slynn in Chief Adjudication Officer v Quinn [1996] 4 All ER 72: 'In my opinion arrangements made in order to qualify as the provision of Part III accommodation under section 26 must include a provision for payments to be made by the local authority.'

Section 26 further puts paid to any attempt to assert that those in Supporting People programmes receive an integrated package of accommodation and personal care under section 21. Section 26 provides that, if there is to be such provision under section 21, it must be within a registered care home. That rules out all such schemes.

Positive development

The publication of the determinations is welcome news for local authority lawyers and their client departments. They enable lawyers to give superior advice in disputes of huge financial importance and to better predict the likely result of s32(3) referrals, thereby obviating the need to make them in the first place. In many respects however, their publication is bad news for the DoH. They generally confirm that a local authority can be rid of the financial burden of care users by cynically placing them in the areas of other authorities, especially where the care provision involves tenancies, as with Supporting People programmes.

The determinations make clear that no legal basis exists to penalise those who ignore the guidance in LAC (93) 7 that 'a local authority should not place a person for whom they are financially responsible in accommodation provided by a private proprietor or a voluntary organisation in the area of another authority without informing the other authority'. Until that changes, there remains a perverse incentive to act in polar opposition to the guidance. Large sums are at stake and it is perhaps no coincidence that the determinations' studious reasoning is matched only by their studiously subdued publication.