7.1 The council will make case by case decisions and will consider all relevant circumstances when deciding where someone is ordinarily resident or that they are of no settled residence. We will have regard to whether or not:
- Care Act deeming provisions apply - see paragraph 7.2
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- the person has capacity to make their own decisions about where they wish to live - see paragraphs 7.3 - 7.5
- there are any other circumstances relevant to the ordinary residence decision, for example where someone spends time living in more than one local authority area because they have more than one home
Care Act deeming provisions
7.2 The council may determine that an adult’s care and support needs can be appropriately met in accommodation outside Gloucestershire, in another local authority area. The adult should be involved in the planning process and has the right to make a choice about preferred accommodation provided certain conditions are satisfied.
- Where the accommodation arranged is specified accommodation (see below) in another local authority area the Care Act provides that the adult is deemed to still be ordinarily resident in the area they were in before the placement in the other local authority area began
Specified Accommodation
Specified accommodation means care in a care home, shared lives scheme or supported living accommodation.
Therefore, people whose care is arranged by the council in specified accommodation outside of Gloucestershire will be deemed to still be ordinarily resident in Gloucestershire if that was the area where they were:
-
- ordinarily resident immediately before they began living in the specified accommodation) or
- physically present if they had no settled residence.
| Example: If Gloucestershire commissions care for a Gloucestershire resident in a care home in Warwickshire the adult will be deemed to still be ordinarily resident in Gloucestershire |
Accommodation provided under s117 Mental Health Act (MHA) 1983 (after-care)
7.3 A person discharged from hospital after being detained under Section 3 Mental Health Act (MCA) 1983 is entitled to after care (sec 117 Mental Health Act (MHA)). The authority where they were ordinarily resident immediately before they were detained under the MHA has a duty to provide that aftercare.
7.4 The Care Act deeming provisions are not relevant when determining ordinary residence for the purposes of sec 117 after care. If a person is accommodated in specified accommodation under the Care Act by an authority (Authority A) in another authority area (Authority B) prior to detention, Authority B would be responsible for providing section 117 after-care as the person was living there. The Care Act provides that the authority responsible for meeting a person’s needs under the Care Act sec 117 should be the same authority that has the duty to provide accommodation under sec 117 aftercare. Therefore in the above scenario Authority B would take on Care Act responsibilities as well as sec 117 aftercare.
NHS accommodation
7.5 People who are admitted to an NHS hospital do not become ordinarily resident in the local authority area where the hospital is situated. They will remain the responsibility of the local authority where they were:
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- ordinarily resident immediately before they were admitted to hospital,
or
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- physically present if they were of no settled residence.
Whether or not the person has the mental capacity to make their own decisions about where they wish to live
7.6 The council will assume that people are able to make their own decisions about where they wish to live until we have established that they cannot. We will follow Mental Capacity Act (MCA) Policy | Gloucestershire County Council where mental capacity is in doubt.
7.7 Where a person lacks capacity to decide where to live the council will still have regard to the Shah case (see section 6)
7.8 Where a person lacks capacity and has a lasting power of (LPA) or deputy appointed by the Court of Protection to make decisions for them, the decision to move to a different local authority will usually be treated in the same way as if the person made the decision themselves.
7.9 As a person who lacks capacity to decide where to live cannot be said to be living there voluntarily, the council will consider all the relevant facts such as:
- their physical presence,
- their purpose for living there,
- their connection with the area,
- their duration of residence there and the person’s views, wishes and feelings (insofar as these are ascertainable and relevant)
to establish whether the purpose of the residence has a sufficient degree of continuity to be described as settled, whether of long or short duration.
Looked after children transitioning to adult social care services (Preparation for Adulthood)
7.10 The Children Act 1989 normally no longer apply once a young person reaches 18. The council will start from a presumption that for the purposes of the Care Act the young person remains ordinarily resident in the local authority in which they were ordinarily resident under the Children Act. However, this is only a starting point and if the young person remains in the area in which he was placed as a child or moves to a new local authority area the presumption may be rebutted by the circumstances of the individual’s case and the application of the Shah test (see section 6).
7.11 Young people who move from accommodation provided under the Children Act 1989 directly to living in specified accommodation provided by adult services under the Care Act 2014 will be deemed to still be ordinarily resident in the local authority area which had responsibility for their care under the Children Act.
