Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31October 2016 LocalGovernmentLawyer 30 cannot otherwise be resolved between the authorities concerned) are referred to the Secretary of State under relevant regulations. Detailed guidance on identifying the ordinary residence of people in need of care and support is set out in the Care and Support Statutory Guidance. In February 2016, the DH published a consultation inviting views on a proposed change in its approach to determining ordinary residence disputes between local authorities, including new guidance for establishing the ordinary residence of adults who lack capacity to decide where to live and for looked after children transitioning to adult social care and other accommodation, following the Supreme Court's decision in R (Cornwall Council) v Secretary of State for Health and others [2015] UKSC 46. The DH sought views as to whether the changes to the guidance (which proposed that where an adult lacks capacity to decide where to live, local authorities should evaluate the quality of the residence without requiring voluntariness) required further clarification. In terms of cross border cases, the Court of Protection (COP) in DB and EC v Worcestershire County Council and others [2016] EWCOP 30, held that that two patients who were transferred from hospital in Scotland to a hospital unit in England had acquired habitual residence in England, and the court therefore had jurisdiction to make decisions about their care and residence. The decision highlights further potential for complexity in cases involving the care of patients who might be ordinarily resident in one jurisdiction for the purposes of local authority care and support, and habitually resident in another place in terms of the court's ability to make decisions about their care and residence. Linked to ordinary residence, the continuity of care provisions in sections 37 and 38 of the CA 2014 established a new regime, designed to ensure that when an adult who is receiving care and support in one area of England moves home, they will continue to receive care on the day of their arrival in the new area. The provisions should therefore minimise the scope for challenge against authorities when people move from one local authority to another. Co-operation between authorities The courts do not like and are generally critical of litigation between local authorities, even when the issues that are being debated are of specific concern or interest to authorities generally. The Supreme Court made its views on this clear in Liverpool City Council v London Borough of Hillingdon and another [2009] EWCA Civ 43 when it said that litigation between two local authorities, each spending public money to dispute their respective responsibilities was "unbecoming". Litigation between authorities therefore tends to be discouraged. The CA 2014 enshrines the principle of co- operation in sections 6 (co-operating generally) and 7 (co-operating in specific cases) but how much teeth do these provisions actually have? Being a general duty, section 6 does not define what actions constitute co-operation although the statutory guidance gives some examples of what co-operation looks like. Section 7 imposes a duty on local authorities and relevant partners to provide written reasons if they decide not to comply with a request for assistance under the section. Interestingly the explanatory note for this provision states that "failure to respond within a reasonable time frame could be subject to judicial review", which arguably brings us back full circle. What will be interesting to see is how successful these provisions are in extending co-operation and joint working between local authorities and other organisations such as health. A new statutory appeals framework? Section 72 of the CA 2014 gives the Secretary of State power to make regulations for an appeals process for decisions taken by the local authority under part 1 of the CA 2014. The appeals process proposed aims to encourage early resolution at a local level, wherever possible. In February 2015, the DH issued a consultation on its policy proposals for a statutory appeal system for care and support. The principles at the heart of the proposed appeals system were expressed to be: early resolution, communication, fairness, equality, independence, accessibility and proportionality. However, given that individuals already have a number of routes available to them should they wish to challenge a decision of the local authority (the local authority's formal complaints procedure, complaint to the Local Government Ombudsman, and judicial review) there is some reservation as to what a further route of challenge could add to the mix. Introduction of the appeals system has been delayed until further notice. Mental capacity and DoLS Local authorities are faced with making a vastly increased number of applications to the COP to authorise deprivations of liberty following the Supreme Court's decision in Cheshire West. A proliferation of cases from the COP setting out guidance on how local authorities should deal with such applications has only recently abated. In June 2016, Local Government Lawyer reported that four local authorities had lodged a claim for judicial review against the DH over the inadequate level of funding for the Deprivation of Liberty Safeguards (DoLS). The Law Commission's final report and recommendations on the proposed changes to the DoLS and draft Bill is expected by the end of the year. That will usher in another major change that adult social care lawyers will be required to get to grips with. The new legal framework for adult social care in England (and now Wales) provides some welcome clarity for adult social care lawyers. As with any new legislation there are areas of uncertainty and new concepts that are as yet untested, while more familiar areas remain well-trodden grounds for dispute and challenge. Mary-Anne Anaradoh is a Senior Editor at PL Public Sector. The Law Commission's final report and recommendations on the proposed changes to the DoLS and draft Bill is expected by the end of the year. That will usher in another major change that lawyers will be required to get to grips with.