Ordinary Residence

1. Understanding Ordinary Residence

Important to know

There is no definition of ordinary residence in the Care Act or any other legislation. The statutory guidance states that the natural meaning of the term should apply, as used in the Shah case 1983;

"ordinarily 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".

Ordinary residence status is therefore about the quality and nature of the connection that the person themselves perceives to have with an area, as opposed to the application of set criteria such as how long they have been living there or whether they own a property. In fact, a person can be ordinary resident in one place and still own property or have interests in another, so long as they consider the area in which they are claiming ordinary residence in as their settled abode at that point in time.

Ordinary residence is important because the Local Authority where the person is ordinarily resident has responsibility under the Care Act for meeting any eligible needs for Care and Support they may have.

2. When to Establish Ordinary Residence

Under the Care Act establishing Ordinary Residence should only be done when a person has been found to have eligible needs i.e. after they have been assessed by the Local Authority. Establishing ordinary residence is one of the considerations about how and who should meet those eligible needs. A person should not be declined an assessment on the basis that they may not be ordinarily resident in the Local Authority area.

When to Establish Ordinary Residence

Under the Act, if the person is not found to be ordinarily resident in the Local Authority area that has assessed them as having eligible needs for Care and Support, then the Local Authority in the area in which they are ordinarily resident should give regard to the outcome of the assessment that has already been completed. This means that the person or carer should not have to undergo another assessment process without good reason and that through effective information sharing and co-operation the Support Planning process can be completed based on the assessment undertaken by the first Authority.

3. Situations when a person will be receiving Care and Support in one Local Authority but be ordinary resident in another

People who have been placed because the Local Authority does not have appropriate services available

If a Local Authority in England places a person in regulated care provision outside of its area because it cannot meet their eligible care and support needs locally then the person remains ordinarily resident there.

People who have been placed into accommodation providing regulated care provision

Section 39 of the Care Act sets out specific accommodation types and if a person is placed into any of those accommodation types in another area they remain ordinarily resident in the placing authority. These are:

  1. A residential or nursing home;
  2. A hospital;
  3. A Shared Lives scheme; or
  4. A Supported Living Scheme

People can be residing in the listed accommodation in another area because:

  1. The Local Authority deems it crucial to promoting their Wellbeing; or
  2. The Local Authority is not able to provide appropriate services locally.

People who are visiting or staying temporarily in the Local Authority area

Local authorities have powers in the Care Act 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. Costs incurred by the Local Authority can be reclaimed from the Local Authority where the person is ordinarily resident.

4. Occasions when Ordinary Residence may be Unclear

Important to know
Statutory guidance is clear that the determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain or is being contested, the Local Authority should meet the person or carers needs first, and then resolve the question of ordinary residence afterwards.

People who lack capacity

If a person lacks capacity the following should be considered first:

  1. Are they staying in a regulated care provision as set out in Section 39 of the Care Act? If they are then they remain ordinarily resident in the Local Authority that placed them.

If the person is not staying in regulated accommodation, or intends to leave regulated accommodation the following should be considered:

  1. Their connections to the area (family, friends, work, education and professional support networks); and
  2. The purpose of them living or moving there.

Because the person is deemed to lack capacity the question of whether the person has 'voluntarily adopted' the place of residence should not be considered.

Persons of No Settled Residence

People who have clearly and intentionally moved from their previous residence and moved to stay elsewhere on a temporary basis are described as having no settled residence.

Sections 18 and 20 of the Care Act make clear that the Local Authority has a duty to meet the eligible needs of people if they are present in its area but of no settled residence.

18 year old adults who were previously accommodated via the Children's Act 1989

If the young person wishes to remain living in the Local Authority area in which they were placed under the Children Act 1989 you should first consider:

  1. Do they have Care and Support needs under the Care Act. If they do not have Care and Support needs and are able to decide where to live they can claim ordinary residence in the area.

If the young person has Care and Support needs under the Care Act:

  1. Are they staying in a regulated care provision as set out in Section 39 of the Care Act? If they are then they remain ordinarily resident in the Local Authority that placed them.

If the young person is not staying in regulated accommodation, or intends to leave regulated accommodation the following should be considered:

  1. Their connections to the area (family, friends, work, education and professional support networks); and
  2. The purpose of them living or moving there.

If the young person has capacity to choose where to live consideration must also be given as to whether they have voluntarily decided to stay in the area. If the young person lacks capacity this should not be considered.

Persons who have relocated back into England from another country

Until such a person has a settled abode the Care Act guidance states that a logical conclusion for the Local Authority is to treat them as a person of no settled residence.

NHS Accommodation

Under the Care Act ordinary residence is not affected by hospital admission or any other NHS accommodation (unless a person has capacity and intends to reside in the area where the NHS accommodation is post admission). This means that the person remains ordinarily resident in the Local Authority in which they lived prior to admission. This also includes hospitals and NHS accommodation in Wales, Scotland and Northern Ireland. 

This applies regardless of the length of time that the person will be in hospital, the nature and complexity of their eligible needs prior to admission or the nature and complexity of any need for Care and Support they may require after admission.

Where a person is admitted into hospital some distance from the Local Authority in which they are ordinary resident it may be difficult practically for the Authority to visit the person in order to complete an assessment. In this situation the Care Act makes provision under the general principle of co-operation for the geographically closer Local Authority to be delegated tasks to support the statutory function of the Local Authority in which the person is ordinarily resident (for example gathering information to support assessment and Support Planning).

Section 117 Mental Health Aftercare

Where a person was ordinarily resident in a Local Authority area prior to being sectioned under the Mental Health Act 1983 that Local Authority area has a duty under the Care Act to continue commissioning or providing mental health after-care under section 117 (including residential or other regulated care provision). This duty applies even when the person deems themselves to have become ordinarily resident in the other Local Authority area after leaving hospital. The duty is only discharged when:

  1. The person is no longer eligible for section 117 aftercare; or
  2. The person is detained again under section of the Mental Health Act and the 2nd Local Authority now becomes responsible (being the Local Authority in which the person was ordinarily resident when they were detained).

Where a person had no known residence prior to section they become ordinarily resident in the area where they are discharged. The Care Act discourages Local Authorities from making this judgement wherever possible.

Important to know
If a person has Care and Support needs in addition to the mental health needs being met through section 117 Aftercare then these needs also remain the responsibility of the Local Authority in which the person was living before they were sectioned. However, if the person has capacity and chooses to become ordinarily resident in the other Local Authority area after discharge from hospital then the responsibility to meet their Care and Support needs would fall to the new Local Authority (with the 1st Authority remaining responsible for section 117 Aftercare only).

Temporary Absences

Under the Care Act temporary or accidental absences from an area where the person is normally ordinarily resident do not alter the person's status of ordinary residence in that area. Examples of temporary absences include:

  1. Holidays;
  2. Family visits; and
  3. Hospital stays.

The fact that the person may be temporarily away from the Local Authority in which they are ordinarily resident, does not prevent them from receiving any type of Care and Support from another Local Authority if they become in urgent need. Local authorities have powers in the Care Act 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. Costs incurred by the Local Authority can be reclaimed from the Local Authority where the person is ordinarily resident.

People with More than One Home

In general terms it may be possible for a person to have more than one place they call home in more than one Local Authority area. However, the Care Act does not permit or make provision for a person to be ordinarily resident in more than one area at any one time. The purpose of the ordinary residence test is to establish which single Local Authority is responsible for meeting a person's eligible needs so as to avoid potential conflicts or confusion-it would not be practical or possible for such a responsibility to be shared.

If a person therefore appears to divide their time equally between 2 homes (for example a University student who lives in rented student accommodation during term time in a Local Authority area that is not the same as their family home area), it is necessary under the Care Act to establish to which of the 2 homes the person has the stronger link. When established it would be the responsibility of the Local Authority in whose area the person is deemed ordinarily resident to provide or arrange Care and Support to meet the person's needs during the time the person is temporarily away at their second home.

People who Arrange and Fund their own Care

People who arrange and fund their own Care and Support (self funders) and who choose to move to another Local Authority area become ordinarily resident in the new area. If they find that their funds have depleted after moving they need to apply to the new 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 Local Authority.

5. Financial Adjustments between Local Authorities

As described in this guide, there are circumstances where a Local Authority where the person is not ordinarily resident finds itself making arrangements for and paying for support and services to meet eligible needs. This can be apparent at the outset (for example in urgent situations where a person is temporarily away from home when the need develops), or it can established later. In each circumstance the Local Authority which has been paying for that person's care may reclaim the costs from the Local Authority where the person is ordinarily resident. This applies equally to support provided to a carer.

6. Ordinary Residence of Carers

Regardless of where the carer themselves lives, for the purposes of Support under the Care Act the carer is deemed ordinarily resident in the Local Authority area in which the person they provide Care and Support for lives. This means that a Local Authority could find itself meeting the Support needs of a carer who does not live in its area.

7. Meeting the Needs of Carers who Provide Care and Support to more than one Person in more than one Local Authority Area

Where a carer is supporting more than one person in more than one Local Authority area the Care Act guidance stipulates that the various Local Authorities responsible should communicate and co-operate with each other in deciding who is best placed to assess and meet any Support needs the carer may have. Co-operation is one of the general principles of the Care Act and a statutory requirement. Additionally the Act provides all the necessary powers to allow for joint assessments and joint support planning, with the onus being on local authorities to make sure they have the mechanisms in place to work together effectively.

The carer should not have to undertake separate Assessment, Support Planning or Review processes in relation to the caring role they have simply because the local authorities involved have failed to communicate or do not have effective mechanisms in place to work together or share information.

Potential outcomes of co-operation could be:

  1. An agreement where one Local Authority arranges all of the Support and services the carer needs but is reimbursed by another Authority so that the cost is shared;
  2. An agreement where each Local Authority assumes a different role in the process of assessment, support planning or review so as to evenly distribute their resources;
  3. An agreement where one Local Authority agrees to undertake any reviews due to being located nearest to the carers home;
  4. An agreement to complete joint assessment, support planning and review processes.

8. Resolving Disputes about Ordinary Residence

The Care Act anticipates that on the whole determining ordinary residence should be straight forward (so long as one Local Authority agrees the person to be ordinary resident in their area and has made the necessary arrangements to meet their eligible needs there is no matter to be resolved). Sometimes the person may not be in agreement with the decision made and can challenge this with the local authorities involved. The final decision rests with those local authorities.

Disputes between 2 or more Local Authorities

When 2 or more local authorities dispute the ordinary residence of a person the Care and Support (Disputes between Local Authorities) Regulations 2014 sets out a clear process to be followed;

Step 1: First and foremost the law is clear that the person affected by the dispute (and any carer) must not go without the Care and Support (or Support) they need. If the needs are already being met by a Local Authority this Local Authority must continue to meet the needs until the dispute is resolved. If the needs are not yet being met then the Local Authority where the person is physically present must accept responsibility until the matter is resolved. The Local Authority meeting the interim needs in either of these cases is known as the 'Lead Authority'.

Step 2: The authorities must communicate with each other (and the person/carer) and take all reasonable steps themselves to resolve the dispute, including seeking their own legal advice.

Step 3: If the dispute cannot be resolved by step 2 the Lead Authority should apply to the Secretary of State for a determination, providing evidence as specified in the 2014 Regulations (which includes statements clarifying the views of the different authorities).

Step 4: The Secretary of State (or appointed person) will consider the evidence, request any further information it requires and make a determination on the ordinary residence of the person.

Step 5: The Local Authority where the person has been determined as being ordinary resident should make arrangements to continue or assume responsibility for meeting the needs of the person. If the Local Authority does not agree with the determination and has further evidence to support this view, a request can be made to review the determination within 3 months. However, failure to give regard to the determination will likely lead to legal challenge.

Recovery of Costs

If a determination by the Secretary of State (or appointed person) subsequently finds a Local Authority other than the Lead Authority to be the area of ordinary residence, the Lead Authority may recover costs from the Authority which should have been providing the relevant Care and Support.