By Belinda Schwehr, Care and Health Law
In the early days of its evolution, the buzz concept around the Care Bill was ‘portability’, but one cannot take one’s current care package, eligibility or funding allocation on a journey around the country in a sector where decision-making about entitlement turns on local interpretation, even if the eligibility threshold is going to be national.
Continuity on moving from one area to another
The bill provides for a system whereby a person wishing to move from one place to another, with a view to becoming ordinarily resident there, can notify the destination authority. Once they’ve convinced the second authority of the genuineness of their intention, that destination authority must assess the individual and tell them their entitlement.
The second authority need only have regard to the original authority’s assessment and care plan, and give written reasons for any difference between its assessment of needs, the cost or the unmet needs, and those in the original plan – the second authority is the decision maker, because ordinary residence will be moving, and that’s how social care law works.
If the assessment is unfinished by the day of the move, the destination council must meet the unmet needs identified by the first council, at the second council’s own expense, with discretion to decide how to meet the needs, since the environment and available providers may be unavoidably very different. The first council is discharged at that point – unless or until it emerges that the person remains legally ordinarily resident in the first authority’s area, in which case the money spent by the second is recoverable from the first.
Ordinary residence for supported living moves
Section 39 seeks to provide statutory clarity for where certain people’s original ordinary residence should be regarded as subsisting, regardless of what the underlying common law might say.
The current law is that if a local authority organises the admission of a person into supported living premises elsewhere, then the salient factor determining ordinary residence is whether the service user is a tenant, in which case responsibility passes to the authority where the building is situated; or whether the first authority is making a contractual commitment to fund the whole package, in which case it would retain responsibility.
Section 39 aims to make special provision for continuing responsibility, despite a move out of area, by reference to whether the accommodation a person is living in is specified in regulations as being of a particular type, along with the needs being such that they can only be met in accommodation of that particular type. This is unfortunately opaque.
Ordinary residence initiates might assume that these regulations would specify registered care homes, as is currently done through the deeming provision in section 24 (5) of the 1948 Act, but that does not seem to be the policy agenda.
The rumour from the local authority sector is that the type of accommodation so specified will include unregistered supported living settings, but only some such settings. This is despite supported living being exactly the same in legal nature as receiving council care services in one’s own owned or tenanted home, that is to say, the accommodation is not also contracted for by the council in an integrated package, as is the case with residential care. There is no obvious reason for complicating the position for those in supported living.
The rationale may well be to solve the issue that councils are currently disincentivised from encouraging aspirational providers from building housing with care services in their areas for tenants because they will bear the cost when ordinary residence shifts.
But that misses the point, in my view: no-one can legitimately stop businesses offering tenancies to people with disabilities, if they so choose, and the funding settlement from central government could redistribute resources to councils with a lot of such provision.
However, it is the case that statute law can override the common law, and it might be about to happen. My principled objection to this would be that it has not been aired or debated publicly and that it is really all about local authority/central government funding issues, at bottom, not making social care law more understandable to ordinary people. It’s worth remembering that the explanatory notes said this, of the ‘portability’ provisions:
“This section sets out the duties that local authorities are under when an individual, and potentially their carer, notifies them that they intend to move from one local authority area to another. It seeks to ensure that a person who moves local authority area does so with no interruption to their care.”
The notes did not say that the intent behind this major plank of the bill is to carry on the ordinary residence responsibility of the former authority if the person was going into supported living in another area, or going into supported living of a particular nature, or where the original council was facilitating or contracting for the move. It could easily have specified any one of those things, if this was the policy agenda at the time.
The whole thrust of the so-called ‘portability’ rules in sections 37 and 38 is that a person needs to know what they will qualify for if they move, and that is based on the fact that a move by a capacitated person out of one area into a new one signifies, in law, a decision to settle permanently, for every-day living purposes, in the new area. And the making of best interests decisions for incapacitated people about moving elsewhere, even into unregistered premises, can easily be arranged if tenure is organised properly through deputyship. That’s simple, coherent, consistent with the Mental Capacity Act and modern. So I would implore the Department of Health to stick to the current law and not mess about with definitions of types of accommodation, which confusingly cross the registration divide, without first transparently defining the policy agenda that someone or other, as yet unknown, is actually seeking to deliver.
Section 117 service users
Section 39 of the bill also contains provisions governing the ordinary residence of peple receiving aftercare under section 117 of the Mental Health Act 1983 during a period when accommodation is part of the care plan, and that of a person in receipt of NHS accommodation, usually under continuing healthcare arrangements, during that period of special status.
There’s a schedule in the bill for cross-border arrangements, the basic thrust of which is that the arranging authority retains responsibility for anyone being moved to Wales, Scotland or Northern Ireland with social care needs. The word ‘placements’ is used for the schedule title, and the minister referred in the Commons to care homes as being the focus of the schedule. However, once again, the actual words used in the schedule are not limited to arrangements made by councils for accommodation in care homes
There is further provision for agreement to be achieved between the administrations, in relation to people moving into supported living, where the care needs to be able to be delivered in the same place as the accommodation. But again, there is complete opacity over the policy agenda – is it to exempt all such people from losing their ordinary residence in their home council (and country), or is it to preserve ordinary residence only for people moving with the help of a council, in some undefined way? Continuity of adequate care is the essential outcome aimed for, and that will be done through notification obligations at the very least; but it’s not possible to tell yet whether the usual consequences of moving will be legislatively amended, or for whom, exactly, in relation to funding liability.
The minister, Norman Lamb, said this, during the committee stage of the legislation: “The new clause deals with a different situation…in which individuals receiving care in their own home move to a different territory in the UK, but remain in a home of their own after the move. In such a situation, the individuals would normally become ordinarily resident in their new local authority area, and that local authority would therefore be the responsible authority should the individual require services from a local authority…I am confident that what concerns hon. members is ensuring that, when the person moves, that person’s care will continue and that there is no break in care arrangements during the move. That is what everyone is rightly concerned about. Given the inherent complexity involved in trying to reconcile four separate legal frameworks, the government’s approach is to work with devolved administrations to develop understandings in principle about cross-border continuity of care that achieve the same practical effect as further legislation…The principles will set out what the local authority for the area where the person currently lives and the authority that he or she is moving to have to do to ensure continuity of care, such as both authorities sharing information and maintaining contact during the process”.
A careful reading of that announcement suggests that ordinary residence in the case of an independent move to another UK country will not remain with the authority being left, although there will be notification rules as to information sharing so as to enable the receiving country to do what it should do, under its own laws. Given the provisions enabling regulations about different outcomes for certain types of accommodation, I do not think that we can hope for clarity, unless or until the guidance is actually finalised.
Section 49 is about continuity of care when a provider’s business fails. The local authority on the spot is the one that bears a temporary, but absolute, duty to pick up the service using clients of the failed provider, regardless of whether the person is a self funder, eligible, chargeable, or commissioned for by another council. There is a specific charging power up to the full cost of the service, that can be levied in this situation.
If a service user is some other council’s responsibility, there is a duty on the temporarily liable council to co-operate with the actually liable one; the temporary one can recover the costs from the liable one.
Section 59 is about assessing a child’s needs for support before he or she becomes 18. Within a reasonable time of approaching 18, a child’s needs could be assessed under Care Act provisions applicable to adults, so that there is smoother transition to an adult package. In most cases where this were done, the assessment would stand as the assessment once the child was 18, unless his or her situation had changed, markedly.
This raises the possibility of transition staff being moved from children’s directorates into adults’ services, because that would avoid a misleading raising of expectations on the part of parents as to what their child may be entitled to, once assessed under a different framework.
The child’s consent is required unless he or she is incapacitated, in which case the council can make a best interests decision to do an adult assessment. A parent or a carer can request that the assessment be done and the council must give written reasons if it doesn’t think it’s going to be of significant benefit to the child to do so. If a capacitated child refuses consent, that cannot be overridden, unless the child is thought to be experiencing neglect or abuse.
The arrangements for young carers have been located in the Children and Families Act 2014, and will be addressed in another article later on. In addition, clause 12 of the Care Bill makes it clear that a local authority may combine an adult assessment with an assessment relating to a child, including a young carer’s assessment, provided all parties agree.
The government have agreed to work with carers’ organisations, parent carers and other stakeholders to review existing legislation, guidance and practice for assessing the support needs of those caring for children, to facilitate a whole-family approach.