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The meaning of 'ordinary residence'

House key iStock 000004543619XSmall 146x219LexisPSL Local Government, in partnership with Jonathan Auburn of 11KBW, discuss the meaning of and tests for ‘ordinary residence’.

Accommodation

A local authority (LA) has a duty to assess whether an adult has needs for care and support if it appears to the authority that they may have such needs. If, following the assessment, the authority finds that the adult has needs and the needs meet the prescribed eligibility criteria, it or another local authority may have a duty/power to meet those needs.

Care Act 2014, ss 1819

The Care and Support (Eligibility Criteria) Regulations 2014, SI 2015/313

Once a decision has been made as to whether a person has eligible needs for care and support, the duty/power to meet those needs rests with the LA in whose area the adult is ordinarily resident. Or, if they have no settled residence, the local authority in whose area the adult is present.

Ordinary residence

There is no statutory definition of ordinary residence. It is given its ordinary and natural meaning.

Ordinarily resident’ refers to a person’s abode in a particular place or country that they have adopted voluntarily.

A person has the capacity to make their own decisions about where they wish to live unless it is shown otherwise.

The purpose of the ordinary residence test is to determine which LA has responsibility for meeting a person’s social needs.

Regulations stipulate that where an adult has needs which can only be met by residence in, and lives in:

  • care home accommodation
  • shared lives scheme accommodation
  • supported living accommodation

they are to be regarded as ordinarily resident in the area in which they were ordinarily resident immediately before they began to live in that accommodation.

CA 2014, s 39

The Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014, SI 2014/2828, reg 2

Factors to consider on ordinary residence

In considering ordinary residence an LA must have regard to the:

  • time spent at the property
  • intention of the applicant
  • continuity of remaining at the property

Shah v Barnet LBC [1983] 1 All ER 226

Temporary absences

There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident. It depends on the nature and quality of the connection to the place.

Any temporary absence does not deprive a person from ordinary residence.

More than one place of residence

Where someone divides their time between two homes they do not have more than one ordinary residence.

If a person divides their time between two homes it must be established to which home there is the stronger link.

It is the responsibility of the LA in which the person is ordinarily resident to provide or arrange services during the time they are temporarily away at the second home.

Disputes about ordinary residence

If an LA has a dispute about the ordinary residence of an adult with eligible needs for care and support it should be resolved after the care assessment. The provision of services should not be delayed due to uncertainty about which authority is responsible.

CA 2014, s 40

Care and Support (Disputes Between Local Authorities) Regulations 2014, SI 2014/2829

Which LA provides the services depends on whether or not the person is already in receipt of care services.

In receipt of services

If the person is already in receipt of services the LA providing them should continue to do so.

Not in receipt of services

If the person is not in receipt of services, the LA in whose area the adult is living is responsible for meeting the adult’s needs pending a resolution of the dispute. If the adult does not have fixed residence, the LA in whose area the adult is present has responsibility.

No settled residence

Local authorities’ duties/powers to meet adults’ needs for care and support are not limited to those who are ordinarily resident in their area. Where an adult has eligible needs and has no settled residence, the local authority in whose area the adult is present may have a duty, and will have power, to meet their needs.

CA 2014, ss 18(1), 19(1)

This article, written in partnership with Jonathan Auburn was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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