June 2019: Paragraph 26 has been amended regarding the process used when an individual is placed in a care home within their existing authority.
People with ‘urgent needs’
1) A person who is ordinarily resident in one local authority area may become in urgent need of accommodation whilst they are in another local authority area. The Care Act provides local authorities with powers* to meet the person’s needs in such urgent cases, if the adult (or in the case of a carer, the adult for whom they care) is known to be ordinary resident in the area of another local authority.
* Sections 19(3) and 20(6) provide powers which can be used for meeting urgent needs for adults with care and support needs and carers respectively.
2) For example, an urgent need for accommodation may arise where a person with severe learning disabilities is on holiday or visiting someone with their carer in another area, and the carer unexpectedly has to be taken to hospital. In this case, the person with learning disabilities may be without assistance and/or unable to care for himself or herself, and may become in urgent need of accommodation, albeit on a short-term basis. Similarly, an urgent need may arise where an older person, who is ordinarily resident in one local authority area, stays with their family in another local authority area during a holiday period, but the caring responsibilities prove too much for the family and they seek assistance from their local authority on the basis that their relative is in urgent need.
3) In circumstances where a person who is ordinarily resident in one local authority area becomes in urgent need in another local authority area, the person’s local authority of ordinary residence would have a duty to meet the person’s eligible needs. However, since it is unlikely to be practicable for that authority to meet urgent needs, the local authority ‘of the moment’ (i.e. where the person is physically present at the time) should exercise their power to meet the urgent needs and provide the necessary accommodation, even if only on a temporary basis. The local authority of the moment should, in carrying out any assessment of needs and providing any necessary accommodation, inform the local authority where the person is ordinarily resident that it is doing so.
4) The local authority of the moment is not required to seek the consent of the local authority where the person is ordinarily resident, in deciding whether and how to exercise the power to meet urgent needs. However, it should notify the other authority of its intention to do so, to ensure that information is shared on the individual case. The local authorities concerned may come to an agreement about sharing or transferring the costs involved in meeting urgent needs. For instance, the local authority of the moment, which is providing the accommodation, may recover some or all of the costs of the accommodation from the local authority where the person is ordinarily resident (and where the duty to meet needs would otherwise fall).
5) On rare occasions, a person with urgent needs who has been provided with accommodation by the local authority of the moment may be unable to return to their own local authority because of a change in circumstances. In this situation, decisions relating to ordinary residence must be made on an individual basis: the local authority of the moment and the person’s local authority of ordinary residence would need to consider all the facts of the case to determine whether the person’s ordinary residence had changed.
6) A local authority may also meet a person’s needs through the provision of accommodation, where the person is not ordinarily resident in that area, even if the needs themselves are not considered to be urgent.
7) For example, a local authority (local authority A) may need to provide accommodation on behalf of another (local authority B) in a situation where a person has been discharged from hospital and needs accommodation but wishes to remain living in the local authority in which he or she received hospital treatment, perhaps to be near family members. In these circumstances, local authority A, where the person was living on discharge from hospital could provide the accommodation, with the notification of his or her local authority of ordinary residence (local authority B). However, if the person subsequently intended to remain in local authority A indefinitely, then their place of ordinary residence would move to local authority A.
People who are party to deferred payment agreements
8) Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to pay for the costs of their care. They also extend choice, providing people with additional flexibility over how they meet the cost of their care.
9) An individual enters into an agreement with their local authority by which payment for their care and support is ‘deferred’, being paid in the interim period by the local authority. The money owed to the local authority is subsequently repaid either when the home is sold, from the person’s estate, or when the amount due is repaid to the local authority. The local authority could be repaid by either the person with the deferred payment agreement or by a third party. The individual grants the local authority a charge over their property for the purposes of security and to facilitate reclamation of the amount due to the local authority.
10) The regulations and guidance require local authorities to offer deferred payments in certain circumstances, and give local authorities discretion to offer deferred payments in other situations. For further information on deferred payments please see chapter 9 of the guidance.
11) It is the local authority in which the person is ordinarily resident that has responsibility for offering and making arrangements for a deferred payment agreement. That local authority then remains responsible for the deferred payment agreement until the agreement is concluded.
12) Information about deferred payment agreements should be offered when a person approaches a local authority, or at the time the person decides to enter a care home accommodation. Where a person is initially accommodated under the 12-week property disregard, the information should be given and arrangements made during this 12-week period. For details on this please see Annex B and the treatment of capital.
13) For example, where a person who is ordinarily resident in the area of local authority A chooses to meet their care and support needs in a care home in the area of local authority B, and the value of that person’s home is being disregarded for 12 weeks, (see Annex H3 – People who are accommodated under the 12 week property disregard), local authority A should offer the person the option of having a deferred payment during the 12-week period. If the person accepts the offer and enters into a deferred payment agreement, local authority A remains responsible for funding their care (minus any contributions from means-tested income and assets).
People who are accommodated under the 12 week property disregard
14) An important aim of the charging framework is to prevent people being forced to sell their home at a time of crisis. The framework therefore creates the space for people who are at risk of needing to sell their home to meet the cost of their care to make informed decisions on how best to do that. This means that a local authority must disregard the value of a person’s main or only home when the value of their non-housing assets are below the upper capital limit of £23,250 for a period of 12 weeks from when a person either:
- first enters a care home
- where an alternative property disregard is unexpectedly lost
15) A local authority also has discretion to choose to apply the disregard where a person has a sudden and unexpected change in their financial circumstances. In doing so, it must consider the individual circumstances of the case.
16) This is known as the ‘12 week property disregard’ and full details are set out in Annex B on the Treatment of Capital.
17) During the 12 week disregard period, the person receives local authority support where they are ordinarily resident. The local authority may place the person in a care home in the area of another local authority, for example because they have expressed a desire to be near family members. However, the placing authority remains the responsible authority during this period.
18) At the end of 12 weeks, the value of the person’s home is taken into account (unless it is subject of an alternative disregard. See Annex B). This may result in the person becoming liable to pay for all of the costs of their care and choosing to enter into a private contract with the care home for the provision of their care on a permanent basis, rather than continuing to be provided with accommodation by their placing authority. In such a case the person would be likely to acquire an ordinary residence in the new area, in line with the settled purpose test in Shah.
19) If the person’s needs or circumstances change and they subsequently require additional or different care and support, including care home support, they should approach the local authority where their care home is situated. However, if they enter into a deferred payment agreement with the original authority or there is another reason such as lack of mental capacity as to why they were unable to enter into a private contract with the care home, they will remain the responsibility of the original authority.
20) If a person arranges for their care and support needs to be met in a care home without regard to the local authority but subsequently contact the local authority in order to receive support, it is likely that they would have acquired ordinary residence in the area in which their care home is situated. If this is the case, it would be the local authority in whose area the care home is situated which would be responsible for funding the person’s accommodation.
People who have sufficient funds to pay for their own care and accommodation
21) When a person moves into permanent accommodation in a new local authority area under private arrangements, and is paying for their own care, they usually acquire an ordinary residence in this new area. If so, and if their needs subsequently change, meaning that they require other types of care and support, (or if their financial circumstances change so that they would not have to pay for all of the costs of their care and support, if their needs were met by a local authority) they may approach the local authority in which their accommodation is situated. That local authority will be responsible for assessing whether it should meet their needs. The person will be ordinarily resident in the local authority area where the person’s care home is situated.
22) Sometimes, a person with sufficient means to pay for their accommodation in a care home, who was intending to arrange their own care, may not be able to enter into a private agreement with a care home. If this is because they do not have the mental capacity to do so and they either have no attorney or deputy to act on their behalf, or another person in a position to do so, the local authority must meet their needs. Therefore if their assessed needs are required to be met by the provision of accommodation in a care home, the local authority must provide that accommodation (and it will do so by arranging for an independent care home provider to provide it) for which the authority may charge the adult.*
* See section 8 of the Care Act 2014. A local authority may meet needs by providing the service (accommodation) itself, however, most local authorities do not do so but meet a person’s needs for accommodation in a care home by arranging for another person to provide it.
23) In other cases, the person may have capacity, but is not able to manage the making of the arrangements without assistance. In these circumstances the authority may provide information, advice and guidance, or refer the person to an independent broker (someone who can help them find and negotiate terms with a care home). Alternatively, under section 19 of the Care Act, it may decide to meet the person’s needs by arranging the accommodation (which it will normally do by arranging for an independent care home provider to provide the accommodation). The local authority should consider doing so where the person’s wellbeing would otherwise be adversely affected, in particular where there is no one else able to act on their behalf. In either case, if the person’s needs which the local authority is meeting can only be met in a type of specified accommodation, the person would remain ordinarily resident in their placing local authority, even if the accommodation arranged by it is in another local authority area. In such circumstances, if the person’s needs change, or their financial resources change so that they may not have to pay the local authority all of the costs for meeting their needs, they should approach the local authority which has arranged the placement and is currently meeting their needs.
Example 1: people who are arranging and paying for their care home placement
Wendy is 82 years old and very frail. Following a fall and a stay in hospital, she is assessed as having eligible needs for care and support under the Care Act. A financial assessment undertaken by her local authority, local authority A, concludes that she does not qualify for local authority financial assistance.
Wendy wants to arrange her own care and support, but does want some help in choosing the right care home. Local authority A provides advice to Wendy and her family on care homes in Local authority A and surrounding areas and help her to select a home that best meets her requirements. The care home is located in local authority B, as Wendy has expressed a desire to move closer to her family. Wendy moves into the care home as a self-funder and signs a contract with the care home for the provision of her care.
Sometime after Wendy moves into the care home, her savings fall below the capital limit and she approaches local authority A for support. She is advised by local authority A that she is no longer ordinarily resident in their local authority and that she should seek financial assistance from local authority B. Local authority B conducts a needs assessment and agrees Wendy’s needs can only be met in residential accommodation like the care home she is living in and agrees to meet the costs, but immediately falls into dispute with local authority A over her place of ordinary residence and therefore which local authority should pay the costs. Local authority B disagrees with A’s argument that Wendy has acquired an ordinary residence in their area and contends that she remains the responsibility of local authority A as that is where she has lived for most of her life.
Under the Care Act, Wendy is deemed to continue to be ordinarily resident in the area in which she was ordinarily resident immediately before her accommodation was provided by a local authority under the Act. Immediately before Wendy was provided accommodation, she was living in the same care home, but was responsible for paying for her own care. She had voluntarily left local authority A and moved to the care home in local authority B, which she had adopted voluntarily and for settled purposes. Therefore, Wendy is found to be ordinarily resident in local authority B.
Example 2: a local authority uses discretionary powers to meet a person’s needs by arranging a care home in another local authority area
Ewan is a frail and older man who has been referred to his local authority for a needs assessment following a hospital admission after a house fire at the bungalow which he owns. His resources are assessed as above the financial limit. The injuries he sustains have resulted in a physical disability, which compounded by his frailty mean he has eligible care and support needs which can only be met in a care home. Ewan has no other family.
His only friends are in a care home in a neighbouring local authority. Ewan is well enough to leave hospital but is finding it difficult to come to terms with his situation. When the local authority he lives in (local authority A) offers information and advice about his options, he asks if they could arrange his care directly in a care home in a neighbouring local authority (local authority B) so he can be with his friends. Local authority A decides to use its powers under section 19 of the Act to meet his needs by arranging a contract between themselves and the care home provider of Ewan’s choice in local authority B, and arrange to recover the costs from him. Once this arrangement is put in place, Ewan had been ordinarily resident in local authority A immediately before his accommodation was provided by that authority in a care home in local authority B, he therefore remains ordinarily resident in local authority A. Local authority A currently has a contract with the care home and recovers the amount from Ewan.
A year later Ewan becomes eligible for social care funding because his resources have depleted, though, following a needs assessment, his needs have not significantly changed. Local authority A continues to be responsible for meeting his needs, and is required to fund them in accordance with charging regulations.
NHS Continuing Healthcare
24) NHS Continuing Healthcare (NHS CHC) is a package of ongoing health and care and support that is arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’, as set out in the National Framework for NHS CHC and NHS-funded Nursing Care. Such care is provided to people aged 18 or over, to meet needs that have arisen as a result of disability, accident or illness. Eligibility for NHS CHC places no limits on the settings in which the package of support can be offered or on the type of services provided.
25) Where an individual is eligible for NHS CHC, the relevant Clinical Commissioning Group (CCG) is responsible for care planning, commissioning health and care and support services, and for case management. Local authorities will continue to have a wider role, for example in relation to safeguarding responsibilities. However, if a review of a person’s care and support needs subsequently determines that the individual is no longer eligible for NHS CHC – perhaps because they needed intensive health and care following an operation and they have now recovered – the NHS ceases to be responsible for the provision of the person’s care and support. Instead, the responsibility for the provision of care and support to meet eligible needs falls to the local authority in which the person is ordinarily resident.
26) Where a person has been provided with NHS accommodation as part of a package of NHS CHC, then prior ordinary residence is retained. Therefore, where a person is placed in a care home (or other accommodation funded by the NHS) in another local authority area for the purpose of receivingNHS CHC, they continue to be ordinarily resident in the local authority area in which they were ordinarily resident before entering the NHS accommodation. Where a CCG places a person in such accommodation, it should inform the person’s local authority of ordinary residence and, if the person is placed ‘out of area’, it is also good practice for the CCG to inform the local authority in which the care home is located.
27) Where a person is accommodated in a care home as part of their package of NHS CHC, it is possible that they may cease to be eligible for NHS CHC, but still need to remain in their care home, or to be provided with accommodation elsewhere. In such a case, the local authority in whose area the person was ordinarily resident immediately before being provided with NHS accommodation would be the authority responsible for arranging care and support to meet the person’s eligible needs, and for funding the person’s accommodation, subject to any financial assessment.
Example: a person is discharged from NHS Continuing Healthcare
Maureen is 72 years old. Three years ago, she suffered a stroke which left her severely disabled with complex care needs. She was assessed as needing NHS CHC and was moved from hospital to a rehabilitation unit within an independent sector care home in local authority B. This placement was fully funded by Maureen’s CCG. Before her stroke, Maureen had lived with her husband in local authority A.
A recent reassessment of Maureen’s needs concludes that she is no longer eligible for NHS CHC, but has eligible needs for care and support and requires accommodation under the Care Act instead. The care home in which Maureen has been living offers her a place on a long-term basis and all those involved in her care agree that this arrangement best meets Maureen’s needs.
Local authority B agrees to fund the placement on a ‘without prejudice’ basis but immediately falls into dispute with local authority A over Maureen’s place of ordinary residence. Local authority B contends that Maureen remains ordinarily resident in local authority A, where she had been living with her husband before her placement at the care home began. Local authority A argues that Maureen has acquired an ordinary residence in local authority B due to the length of time she has spent at the care home. In this situation, when Maureen first enters the care home she is receiving NHS CHC. Therefore, whilst
Maureen is receiving NHS CHC at the care home she remains ordinarily resident in local authority A, where she was living before her stroke.
Once Maureen’s NHS CHC ceases and she is instead provided with accommodation under the Care Act, she is deemed to be ordinarily resident in the area in which she was ordinarily resident immediately before the accommodation was provided. Immediately before Maureen was provided with accommodation she was living in the care home but was still ordinarily resident in local authority A. Therefore, Maureen remains ordinarily resident in local authority A.
28) Under section 9 of the Care Act, local authorities have a duty to assess the needs of any person who appears to have needs for care and support. If it becomes apparent during the course of the assessment that the person has health needs, the local authority should notify the person’s CCG and invite them to assist in the assessment.
29) It is the responsibility of the local authority in which the person is ordinarily resident to provide any care and support identified as necessary to meet eligible needs, in the light of the assessment. Any health services identified by the assessment should be met by the person’s CCG. CCGs and local authorities should work in partnership to agree their respective responsibilities in relation to the provision of the joint package of care.
30) Where a person is placed in accommodation out of area, they remain ordinarily resident in the area of the placing local authority and the placing authority remains responsible for the provision of any other care and support services required. However, the person’s GP may be based in the area in which they are living, and it is this CCG that is responsible for the provision any health services. This may mean that a local authority and a CCG located several miles apart, need to work together to provide a joint package of health and care and support. In the case of a person in receipt of NHS Continuing Healthcare, the placing CCG remains responsible for the provision of care, even where the person changes their GP practice.
British citizens resuming permanent residence in England after period abroad
31) British citizens returning to England after a period of residing abroad (who had given up their previous home in this country) are entitled to an assessment as soon as they return if they appear to have needs for care and support.
32) Accordingly, a returning British citizen would usually acquire an ordinary residence in the area in which they chose to locate, if their intention was to stay living there for settled purposes. For example, they may have family in a particular area and choose to settle there for that reason or they may have no particular reason to locate in a given area. As long as they can demonstrate an intention to remain in the place they are living for settled purposes, they are able to acquire an ordinary residence there.
33) However, if a returning citizen presents to a local authority on their return to England but has no particular intention to settle in that area, the local authority may decide they may be found to be of ‘no settled residence’ and/or in ‘urgent need’ (see heading ‘People with Urgent Needs’). Each case should be decided on an individual basis.
34) It should be noted that ordinary residence can be acquired as soon as a person moves to an area, if their move is voluntary and for settled purposes. 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.
Armed forces veterans and the families of armed forces personnel
35) The ordinary residence provisions apply to armed forces veterans and the families of armed forces personnel in active service in the same way as they apply to other people. If veterans have needs for care and support upon leaving the forces, they would usually acquire an ordinary residence in the area to which they chose to locate. If a veteran does not have a permanent place to live on leaving the forces or does not have a settled purpose in relation to where they are living, they may be found to be of ‘no settled residence’ and/ or in ‘urgent need’. If the person is found to be of no settled residence, then the local authority in which they are physically present will be responsible for meeting their eligible needs for care and support. If the person is determined to have urgent needs, then the same local authority should consider using its powers to meet those needs, in advance of establishing where the person’s ordinary residence lies.
36) Where family members (who are 18 or over) of armed forces personnel in active service need care and support, their ordinary residence would fall to be assessed and they would generally be ordinarily resident in the area in which they were living. If the member of the armed forces was subsequently posted to another area of the country, the Shah test would again apply and the family member in need of services would usually acquire an ordinary residence in the area to which they were posted. However, if the family member was in receipt of accommodation, prior to the posting and was placed in accommodation in the new area by their original authority in order to be near their family, they would remain ordinarily resident in the area of the placing authority.
37) In the event of a service family returning from overseas, the ordinary residence of any family members (aged 18 or over) requiring care and support would be assessed and they would usually acquire an ordinary residence in the area in which they chose to reside for settled purposes. If the family had no settled purpose in relation to where they were living, the family member in need of services may be found to be of ‘no settled residence’ and/or in ‘urgent need’.
Young people in transition from children’s services to adult care and support
38) Children who are in need of care and support, including children who are ‘looked after’,* are provided with accommodation and/or services under the Children Act 1989 (the ‘1989 Act’). They may also be provided with care and support under the Chronically Sick and Disabled Persons Act 1970 (the ‘1970 Act’), though they receive universal services such as access to schools and primary health care in the same way as all other children. When a young person with care and support needs reaches the age of 18, the duty on local authorities to provide accommodation and services under the 1989 Act ceases. From their 18th birthday, care and support is generally under the Care Act 2014. This is provided by the local authority in which the young person is ordinarily resident.
* A child who is ‘looked after’ is defined in section 22(1) of the Children Act 1989 and this term means broadly that a child is in a local authority’s care by virtue of a care order or is provided with accommodation by a local authority in the exercise of their social services functions.
39) The Department of Health is currently considering the policy implications in relation to the determination of OR disputes for children transitioning into adult social care services, in the light of the judgment – handed down on 8 July – in the case of R (on the application of Cornwall Council) Secretary of State & Ors  UKSC46 (‘Cornwall’). New guidance will be provided in due course.
Care leavers and the 1989 Act
40) Where a child’s ‘looked after status’ under the 1989 Act ends, the local authority which was formerly responsible for them might retain some duties under the 1989 Act, after they reach the age of 18. These young people are referred to as ‘young people eligible for care leaving services’ or ‘care leavers’.
41) In order to provide care leavers with the assistance they need to achieve their aspirations, local authorities must allocate a personal adviser and work with a care leaver to maintain a pathway plan that sets out the support and services available (which may include assistance with education or training). This support may continue until the young person reaches the age of 21 or for longer if they remain in an approved programme of education or training*. Where a young person qualifies for advice and assistance under section 24 of the 1989 Act, the local authority may be required to advise and befriend him or her. They may also be required to give him or her assistance in kind and, exceptionally, by providing accommodation or cash.
* See section 23CA of the 1989 Act which was inserted by the Children and Young Persons Act 2008, where a former relevant child resumes a programme of training up to age 25, they are entitled to continuing support from a leaving care personal adviser allocated by their authority of ordinary residence under the 1989 Act.
42) A local authority which is responsible for providing support to a care leaver is not under a general duty to provide accommodation. Therefore, when a care leaver with assessed care and support needs reaches the age of 18 and requires residential accommodation, their accommodation is usually provided under the 2014 Act, by their local authority of ordinary residence. However, in 2014, the government introduced a duty on local authorities to support those care leavers aged 18 and eligible for care leaving services, who want to stay with their former foster parents until their 21st birthday, known as ‘Staying Put’.
43) There are, however, certain powers and duties to provide accommodation to care leavers in particular cases under the 1989 Act. Under section 24B(5) of the 1989 Act, local authorities have a duty to provide certain young people who qualify for advice and assistance under section 24 of the 1989 Act with vacation accommodation if they are in full-time further or higher education and their term-time accommodation is not available. They also have a power to provide assistance during term-time, such as expenses to cover travel or equipment costs and expenses incurred by the young person in living near the place where he or she is studying.
44) Local authorities do not have a duty to provide accommodation to care leavers during term time. Such accommodation is funded by whatever mainstream funding sources are available to support higher education students. Nor is there a duty under the 1989 Act to provide care and support in the home to care leavers who are in higher education – such services would be provided under the 2014 Act by the local authority of ordinary residence.
45) Local authorities also have a power to provide accommodation under section 24A(5) of the 1989 Act to a young person whom they are advising and befriending under section 24A. Such accommodation may only be provided in exceptional circumstances and if, in the circumstances, assistance may not be given under section 24B (vacation accommodation). A young person who is eligible for care home accommodation under the 2014 Act would be unlikely to be regarded as being in ‘exceptional circumstances’.
Other provisions under which an ordinary residence determination can be sought
Schedule 3 to the Care Act 2014
46) Schedule 3 to the Care Act places a duty on local authorities and the NHS to work together to ensure the safe hospital discharge of people with care and support needs. Where a person remains in hospital because a local authority has not carried out an assessment or put in place arrangements to meet the care and support that it proposes to meet in order to ensure that the person can be safely discharged from hospital, the local authority may be liable to pay the relevant NHS body a charge per day of delay.
47) Schedule 3 to the Care Act requires NHS bodies to take reasonable steps to ensure that eligibility for NHS Continuing Healthcare is assessed in all cases where it appears to the NHS body that the person may have a need for such care, in consultation, where it considers it appropriate, with the local authority appearing to the NHS body to be the authority in whose area the patient is ordinarily resident.
48) Where it is not likely to be safe to discharge a hospital patient unless arrangements for meeting their care and support are put in place, the NHS body must notify the patient’s local authority of this. Under the Care Act, it is the local authority in which the patient appears to the NHS body to be ordinarily resident. Or where a person is not ordinarily resident in any local authority, i.e. a person of ‘no settled residence’, the Care Act provides that it is the local authority in which the hospital is situated that the NHS body must notify. Once notification has been received, the local authority must arrange for an assessment of the person’s need for care and support to be carried out and for the provision of any services.
49) If a local authority receives notification from the NHS body of a person who it believes is ordinarily resident in another local authority area, it should inform the NHS body that has issued the notification immediately. If the NHS body agrees that the person is ordinarily resident elsewhere, it should withdraw the notification and re-issue it to the correct local authority. If the NHS body does not agree that the person is ordinarily resident elsewhere, the local authority in receipt of the notification must proceed with carrying out the assessment and arranging for the provision of any necessary care and support. A person ready for discharge from hospital should not remain in hospital for longer than necessary because 2 or more local authorities have fallen into dispute about the person’s place of ordinary residence.
50) Where a local authority has provisionally accepted responsibility for a person discharged from hospital but remains in dispute with one or more local authorities over the person’s ordinary residence in relation to which authority should reimburse the NHS body for the person’s delayed discharge, a determination from the Secretary of State can be sought under section 40 of the Care Act. Determinations should only be sought as a last resort: local authorities should take all steps necessary to resolve the disputes themselves first.
The Mental Capacity Act 2005 Deprivation of Liberty Safeguards
51) The Deprivation of Liberty Safeguards (MCA DoLS)* in the Mental Capacity Act 2005 (‘the 2005 Act’) provide a framework for authorising the deprivation of liberty of people who lack the capacity to consent to arrangements made for their care or treatment (in either a hospital or care home**) and who meet the qualifying requirements in Schedule A1, including that they need to be deprived of liberty in their own best interests, and to prevent harm to them, and that the deprivation of liberty is a proportionate response to the likelihood and seriousness of that harm.***
* The Mental Capacity Act Deprivation of Liberty Safeguards were inserted into the Mental Capacity Act 2005 by section 50 and Schedules 7,8 and 9 to the Mental Health Act 2007 which inserted Schedules A1 and 1A into the 2005 Act.
** Applications may be made to the Court of Protection under the 2005 Act to authorise deprivation of liberty in settings other than hospital or care homes.
*** See the best interests requirement paragraph 16 of Schedule A1 to the 2005 Act.
52) Under the MCA DoLS, the ‘managing authority’ of a hospital or care home must request a standard authorisation from a local authority (a ‘supervisory body’) if they believe an adult will, or will be likely to be, deprived of their liberty in hospital or care home setting within the next 28 days.
53) In most cases, it should be possible to obtain a standard authorisation in advance of deprivation of liberty occurring. Where this is not possible and a person needs to be deprived of their liberty in their own best interests before the standard authorisation process can be completed, the managing authority must give itself an urgent authorisation and apply to the supervisory body for a standard authorisation to be issued within 7 calendar days.
54) Where a person needs to be deprived of liberty in a care home in England or Wales, the 2005 Act provides that the supervisory body is always the local authority in which the person is ordinarily resident.* This remains the case regardless of whether the person has been placed in the care home in another authority’s area by the local authority or a CCG.
* Paragraph 18(2(1) of Schedule A1 to the 2005 Act.
55) If a person is arranging and paying for their care under private arrangements, they usually acquire an ordinary residence in the area in which their care home is located. Therefore, the local authority in which the care home is located will be the supervisory body.*
* Paragraph 18(2) of Schedule A1 to the 2005 Act.
56) Where a person is not ordinarily resident in any local authority (for example a person of ‘no settled residence’), the 2005 Act provides that it is the local authority in which the care home is situated that becomes the supervisory body (see paragraph 18(2) of Schedule A1 to the 2005 Act).
57) Under paragraph 183 of Schedule A1 to the 2005 Act, the ‘deeming’ provisions in section 39(1) of the Care Act apply for the purposes of determining where a person is ordinarily resident so that the local authority that is the supervisory body can be identified. A person remains ordinarily resident in the area of the local authority (A) in which the person is ordinarily resident before that local authority (A) places the person in the area of authority (B) in an arrangement that amounts to a deprivation of liberty. Therefore the placing local authority remains the supervisory body.
58) If a person needs to be deprived of liberty in a care home upon their discharge from hospital, and the care home applies for a standard authorisation in advance*, whilst the person is still in hospital (as would be good practice in this situation), it is the local authority in which the person was ordinarily resident before their admission to hospital which is responsible for acting as the supervisory body. This remains the case even where it is planned that the person will be discharged from hospital to a care home located in another local authority area.
* A standard authorisation comes into force when it is given, or at any later time specified in the authorisation: paragraph 52 of Schedule A1 to the 2005 Act.
59) If the person arranges and pays for their own care in that care home (usually a deputy appointed by the Court of Protection under the 2005 Act would enter into a contract with the care home on their behalf), they would generally acquire an ordinary residence in the area in which their care home is located (the area of local authority (B). However, if the person does not yet reside in the care home when the care home applies for the standard authorisation, they are not yet ordinarily resident in the area for local authority (B), despite any imminent plans to move there. Whilst the person remains in hospital, they remain ordinarily resident where they were before admission to hospital (the area of local authority A) until they are discharged from hospital. In these circumstances, the supervisory body is local authority (A).
60) Section 39(5) of the Care Act applies to all NHS accommodation and not just hospitals. This means that where a person is placed in a care home ‘out of area’ by a CCG under NHS CHC arrangements, they remain ordinarily resident in the area in which they were ordinarily resident before being provided withNHS CHC. Therefore, if the person in receipt of NHS CHC subsequently needs to be deprived of their liberty, it is the local authority in which they were ordinarily resident immediately before being provided with NHS CHC that is the responsible supervisory body for the purposes of DoLS.
61) Where 2 or more local authorities dispute the person’s ordinary residence for the purpose of identifying which authority is the supervisory body, the 2005 Act provides that disputes may be determined by the Secretary of State or appointed person, or by the Welsh Ministers where they cannot be resolved locally. Disputes between a local authority in England and a local authority in Wales, are determined by the Secretary of State or Welsh Ministers under cross-border arrangements made under paragraph 183(4) of Schedule A1 to the 2005 Act.
62) A determination under the 2005 Act can only be sought in relation to ordinary residence disputes that arise in connection with which local authority is the responsible supervisory body for the purpose of giving (and potentially reviewing) a standard authorisation. Where ordinary residence disputes occur in relation to the general provision of care accommodation or services, determinations should be sought under section 40 of the Care Act.
63) Regulations made under the 2005 Act* put in place arrangements where there are disputes between local authorities in England over the ordinary residence of a person and who is the supervisory body arising when the managing authority of a care home or hospital requests a standard authorisation from a local authority; or any person requests the local authority to decide whether or not there is an unauthorised deprivation of liberty in a care home or hospital. They set out that, in the event of a dispute occurring, the local authority which receives the request for a standard authorisation must act as the supervisory body until the dispute is resolved, unless another local authority agrees to perform this role.
* Part 6 of The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 (S.I. 2008/1858) as amended by article 11 of, and paragraph 118 of Schedule 2 of the National Treatment Agency (Abolition) and the Health and Social Care Act 2012 (Consequential, Transitional and Saving Provisions) Order 2013 (S.I. 2013/235). These Regulations apply only to England.
Example: moving from hospital to a care home under a standard authorisation
Geeta is 86 years old and has dementia. She lives on her own in local authority A but receives some care and support at home. She requires a routine operation to remove gallstones and is admitted to hospital in local authority B.
During Geeta’s stay in hospital she becomes increasingly confused and starts to wander, making various attempts to leave the ward. To ensure that Geeta can continue to receive essential treatment, her doctors and nursing staff feel it would be in her best interests to prevent her from leaving.
As Geeta is having her movements so restricted as to amount to a deprivation of liberty, and does not have capacity to consent to these arrangements, hospital staff place Geeta under an urgent authorisation and apply to local authority B, the local authority for the area in which the hospital is located, for a standard authorisation to last for the remainder of her hospital stay. Local authority B gives the standard authorisation.
Geeta recovers well from her operation but remains very confused. In preparation for her hospital discharge, she is assessed by a multi-disciplinary team; it is found that she does not have capacity to decide where she should live and a best-interests decision is made that concludes she is no longer able to live independently in the community and recommends that she enters a care home. A place in a care home specialising in dementia care is found for Geeta in neighbouring local authority C. Due to Geeta’s worsening dementia and the fact that she is unable to consent to living in the care home, the care home manager feels she will need to be deprived of her liberty as soon as she enters the care home, at least for the short-term until she settles in.
The care home manager requests a standard authorisation from local authority B, the area in which the hospital is located, mistakenly believing that local authority B is Geeta’s local authority of ordinary residence. Local authority B immediately falls into dispute with local authority A over Geeta’s ordinary residence and which authority should act as the supervisory body. Local authority C also becomes involved in the dispute.
Local authority A argues that local authority C should be the supervisory body. Its argument is based on the fact that the standard authorisation would begin as soon as Geeta moves into the care home in local authority C, at which point she will become ordinarily resident there. Local authority B argues that Geeta has not acquired an ordinary residence in their local authority during her hospital stay and, as such, local authority A or C should be the supervisory body. Finally, local authority C argues that, as Geeta is still in hospital and has not yet moved to their local authority area, she cannot be ordinarily resident in local authority C, despite her impending move.
As local authority B has received the request for the standard authorisation, it is obliged to act as the supervisory body until the dispute is resolved, as required by the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008. However, local authority C feels strongly that local authority B is not the correct authority to give the standard authorisation and agrees to take on the supervisory body role until the question of Geeta’s ordinary residence is decided.
To determine Geeta’s ordinary residence for purpose of identifying the responsible supervisory body, paragraph 182 of Schedule A1 to the 2005 Act sets out that the supervisory body is the local authority in which the person is ordinarily resident. Therefore, Geeta’s ordinary residence must be established at the point in time when the care home manager requested the standard authorisation.
At the time of the request, Geeta is in hospital in local authority B. Therefore, whilst Geeta is in hospital in local authority B, she remains ordinarily resident in local authority A. When Geeta moves to the care home in local authority C her ordinary residence will not change because local authority A was the area she was living in for settled purposes before she went to the care home. Local authority A is also the supervisory body responsible for considering the request for the standard authorisation.
MCA DoLS authorisations should be given for as short a time as possible. It would be sensible for local authority A to grant a short standard authorisation so her situation can be reviewed once she moves to the care home. If the review concludes that a further standard authorisation is in Geeta’s best interests, the care home should request a fresh standard authorisation from the supervisory body, Geeta’s local authority of ordinary residence, local authority A. This is because while Geeta remains in receipt of services her ordinary residence does not change and remains with local authority A where she was living immediately before she was admitted to hospital.