The government has updated the Care Act statutory guidance after it lost a Supreme Court case on ordinary residence disputes.
The Department of Health has reviewed and updated the guidance following the Supreme Court judgment in July in the case of R (on the application of Cornwall Council) v Secretary of State for Health.
The updates, which can be read from paragraphs 19.17 to 19.43 of the guidance, set out changes in the approach that should be used to determine ordinary residence or disputes between councils in relation to adults who lack capacity to decide where to live and looked-after children who are transitioning to certain adult social care services.
Updated guidance on ordinary residence
Community Care Inform Adults users can benefit from up-to-date guidance on ordinary residence under the Care Act by accessing our dedicated guide to this topic, updated to take account of the changes to the statutory guidance in light of the Cornwall case.
In the Cornwall case the court rejected the health secretary’s determination of the ordinary residence of a disabled man – known as PH – who lacked capacity to decide where he lived.
The case considered which of three authorities – Wiltshire, Cornwall or South Gloucestershire – should be responsible for the £80,000 annual costs of PH’s care in a Somerset care home.
In ruling that PH was ordinarily resident in Wiltshire, the Supreme Court judged that the secretary of state had misapplied the law in determining that Cornwall was responsible for his care.
The case was judged in line with the law set out in the National Assistance Act 1948. The law has been updated by the Care Act 2014 and ordinary residence determinations made after April 2015 are governed by the new law.