Ordinary residence and impaired capacity

The Court of Protection team at 39 Essex Chambers examine some recent 'ordinary residence' disputes in relation to those with impaired capacity.

The Department of Health and Social Care has published the latest round of anonymised determinations of ordinary residence disputes from 2017. These disputes quite commonly involve people who lack capacity to make their own decisions about their residence and care. Insofar as they relate to such issues, the latest determinations are summarised below:

• OR11 – P had a moderate learning disability and autism. From 1998, P lived in Council A, first at home with his mother and then from 2004 in a care home. On 10 December 2012, the Court of Protection decided that it was in P’s best interests to reside in independent supported living accommodation. On 17 January 2013, P moved to supported living accommodation in Council B. His accommodation was paid for by way of housing benefit. The Secretary of State concluded that P had been ordinary resident in the area of Council B since 17 January 2013.
• OR 12 – P had a diagnosis of Down’s Syndrome and learning disability. Prior to March 2015, P lived in supported housing in Council A. P’s needs changed and she was assessed as needing a supported living placement. Capacity assessments in February and March 2015 concluded that P had capacity to decide where to live and to sign a tenancy agreement. P was offered a choice of two placements and chose a supported living placement in the area of Council B. Council B disputed that P had capacity to move to the supported living placement in the area of Council B. That conclusion was inconsistent with other assessments undertaken by an independent psychiatrist on 26 June 2012 and 24 September 2016, and a different social worker on 22 August 2013. The Secretary of State noted that capacity was time and issue specific and concluded that, on the balance of probabilities, P did have capacity to decide to move voluntarily in March 2015 and became ordinary resident in Council B when she moved.
• OR13 – P resided in Council B until June 1992 when she suffered an acquired brain injury after being assaulted. She was treated in hospital in the area of Council A between 1992 and 1997. It was agreed that she lacked capacity to make decisions about her residence and care. In 1997, P was discharged to accommodation in the area of Council B. Council A argued that the accommodation was hospital accommodation and that P was ordinarily resident in Council B by virtue of the deeming provision. Council B argued that the accommodation was non-hospital accommodation, that the deeming provision did not apply, and that P was therefore ordinarily resident in Council A. The Secretary of State had no hesitation in finding that the accommodation fell within the definition of a “hospital” as the evidence showed that P was admitted for treatment for her acquired brain injury for both convalescence and/or medical rehabilitation. P was therefore ordinarily resident in Council B from 1997.
• OR14 – P lived in her own tenancy in the area of Council B for approximately 50 years. In June 2015, P’s GP reported that P was “moderately demented” and recommended a move to 24 hour residential care. Council B assessed P in July 2015 and concluded that she did not meet the eligibility criteria for residential care. P’s daughter challenged this conclusion. Another assessment by Council B in September 2015 concluded that P had capacity and did not require additional services as P was due to move in with her daughter. On 22 September 2015, P moved to live with her daughter in the area of Council A. In December 2015 P was admitted to hospital in the area of Council A. Council A undertook an assessment of P’s needs and concluded that she required residential care to meet her needs. In January 2016, Council A assessed P as lacking capacity to make decisions about her care and residence. P was then discharged to a residential care home in the area of Council A which was funded by Council A. Council A contended that Council B had failed in their duty to meet P’s needs and that her move to Council A was not for voluntary or settled purposes. The Secretary of State rejected this argument and proceeded on the basis that P had capacity to make her own decisions as to accommodation and care. The evidence indicated that P wished to move to the area of Council A to live with or nearer her daughter. She was therefore ordinarily resident in the area of Council A.
• OR15 – P attended a residential special school in the area of Council B from 2000. In 2009, she was subsequently placed in the area of Council A and the placement involved accommodation funded by the NHS. There was a starting but rebuttable presumption that a person would not acquire an ordinary residence while in NHS funded accommodation but that had to be considered in light of all of the relevant facts. In this regard, there was a dispute as to P’s capacity to make decisions about her residence and care at that time. Although there was no assessment of P’s capacity, there was evidence available as to P’s cognitive abilities in 2008. The Secretary of State determined that it was more likely than not that P did not have capacity to decide where to live. There was no indication that P’s placement in Council A was intended to be temporary or that the area of Council B would remain the focus of her life and activities following her move. The Secretary of State determined that P was ordinarily resident in the area of Council A.
• OR16 – P had been diagnosed with a learning disability, schizophrenia and epilepsy along with a number of physical health needs. She had been admitted to various institutions including hospitals from 1964 to 2004 and a care home from 2004 in the area of Council B. There was no dispute that P lacked capacity to decide where to live. It appeared that Council A granted a standard authorisation depriving P of her liberty in the care home. In 2014, Council B was informed that P no longer qualified for “mental health funding” and that responsibility for P’s care passed to Council B’s social services authority. Council B disputed the decision that P was no longer entitled to health services. The Secretary of State determined that P was ordinarily resident in the area of Council B placing weight on (amongst other factors) the fact that P indicated a wish to remain in Council B, that she had lived in Council B since 1971, and that in all the circumstances it would be contrary to common sense to suggest that B was ordinarily resident in Council A.

Comment

The ordinary residence test must always be applied to the facts following the approach of R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46 (see also our guidance here). These recently published determinations do not set out any new legal principles. However, they do provide useful examples of how the test is applied in practice across a variety of factual circumstances, and the transparency shown in public decision making by the publication of these determinations is very welcome.

This article was written by the Court of Protection team at 39 Essex Chambers.