8.1 Ordinary Residence

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1. Introduction

This policy outlines the statutory duties placed upon Lancashire County Council in relation to the meaning of “ordinary residence” in practical terms under the Care Act 2014.

For information on how ordinary residence works under Section 117 of the Mental Health Act, please see Lancashire County Council’s Section 117 Aftercare policy.

2. Policy Aim

This Policy aims to:

• address and manage issues around “ordinary residence”.
• support the determination of where a person is ordinarily resident.
• outline some of the different situations that can arise where “ordinary residence” is an issue.

3. The Legal Framework

Where an individual is ordinary resident determines which local authority is required to meet their eligible care and support needs under the Care Act (and the Mental Health Act – although this policy does not cover such cases). Whether the person is ‘ordinarily resident’ in the area of the local authority is a key test in determining where responsibilities lie between local authorities for the funding and provision of care and support.

The concept of ordinary residence also exists to make sure that a council cannot “export” responsibility for you by placing you into a different council area.

Removing any uncertainty about your ordinary residency is also important for you and your family and for providers of your care, support and accommodation.

The idea of your “ordinary residence” will usually arise when you are moving or have moved from one local authority area to another or are discharged from hospital. In the vast majority of cases, it will be obvious where you are ordinarily resident and, therefore, which council is responsible for meeting and funding your eligible social care needs.

4. Defining Ordinary Residence

The concept of ordinary residence is not defined in the Care Act, however, the Care and Support Statutory Guidance states that the term should be given its ordinary and natural meaning. It goes on to say that it involves questions of both fact and degree. Factors such as time, intention and continuity (each of which may be given different weight according to the context) have to be taken into account.

The practical application of ordinary residence may vary depending on your circumstances or the setting in which you receive care and support. Because of this, ordinary residence can sometimes appear complex or confusing and it is always important that all the available facts and circumstances of a particular case are looked at thoroughly before proceeding.

5. When to Determine your Ordinary Residence

A Care Act assessment of needs should be completed by whichever council is currently meeting your needs or, if there is none, the council where you are currently living. If that is not clear, this will be where you are physically present at the time of the assessment (see Assessment of Needs policy).

You will not be declined an assessment of needs on the basis that you may not be ordinarily resident in the council area. Equally, an assessment of needs – and any provision of care and support related to any assessed or urgent need(s) –will not be delayed because of any uncertainty about ordinary residence. The statutory guidance is clear that a determination of ordinary residence must not delay the process of meeting eligible needs.

In cases where ordinary residence is in dispute, the local authority that is meeting your needs, or your carer, on the date that the dispute arises must continue to do so – on a “without prejudice” basis whilst the dispute is settled (see Section 9, Disputes).

Therefore, Lancashire County Council should only agree to fund on a without prejudice basis if we are either already meeting your needs or, if no local authority is meeting your needs, if you are physically present in Lancashire.

If Lancashire County Council agrees to meet your (or carer’s) needs on this “without prejudice” basis, the relevant social worker or manager will follow up with the relevant other local authority to resolve the question of ordinary residence (in some cases, this may involve Continuing Health Care cases involving the NHS).

Any agreement to provide interim funding must always be followed up with a formal resolution of your ordinary residence status. Any decision to meet your needs while that status is being determined does not constitute a commitment by Lancashire County Council to fund your care and support, and has no bearing on the ultimate outcome.

Lancashire County Council will advise the relevant local authority when it knows you are moving out of Lancashire and into another council area, just as other referring authorities should advise Lancashire County Council when they know you are moving into Lancashire. Lancashire County Council’s Continuity of Care Policy sets out the process to be followed where you have care and support needs and you decide to move home.

6. How Ordinary Residence is Determined

In most cases it will be obvious that you are ordinarily resident in Lancashire because you have always lived in Lancashire, or you have made a voluntary decision to move to Lancashire and settle here (and no other local authority was involved in ‘placing’ you in Lancashire).

In many cases, it will also be obvious that you are not ordinarily resident in Lancashire.

Each case will be considered on its own merits. Your ordinary residence under the Care Act, will be checked against the following:

• Where do you spend most of your time now?
• How long have you lived at that location?
• What was your intention when you moved?
• Where have you spent most of your time in the past?
• Was any other local authority involved in arranging or funding your current placement?
• Under what legislation for example, the Care Act 2014 or the Mental Health Act 1983 – is your care and support being provided and funded?
• If you do not have mental capacity to decide where to live, what was the outcome of the best interests decision about where you will live?
• What are your intentions and plans for the future?

6.1 Determining ordinary residence for people with capacity as defined by the Mental Capacity Act: The Shah Test

There is no definition of ordinary residence within the Care Act 2014 or any other legislation. The Care and Support Statutory Guidance states that the “ordinary and natural meaning” of the term should apply. The courts have considered the meaning of ordinary residence and the leading case is that of Shah v London Borough of Barnet (1983). In this case, Lord Scarman stated that:

“Ordinary residence refers to a person’s abode in a particular place or country which the person has adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or long duration.”

This approach applies to you if you have the mental capacity (as defined by the Mental Capacity Act 2015) to decide where you want to live.

This decision gave rise to the ‘Shah test’, which can essentially be broken down to three elements, as follows.

Application of this voluntary element of the Shah test is subject to an important part of the statutory framework called “the deeming provisions”. See Section 6.3, Arranging care and support in accommodation outside of Lancashire: the ‘Deeming Provisions.

6.2 Determining ordinary residence for people who lack capacity as defined by the Mental Capacity Act

A different approach must be used to establish ordinary residence under the Care Act 2014 if you do not have the mental capacity (as defined by the Mental Capacity Act 2005) to voluntarily choose where you live.

The key judgment in this instance is a case commonly referred to as “the Cornwall case” from 2015.

The Supreme Court judgment in this case means that ordinary residence for people who lack mental capacity should be determined by applying the Shah test (see Section 6.1) but place no regard, that due to a lack of capacity they cannot be living there voluntarily.

This determination will involve considering all the facts, such as the place of your physical presence, your purpose for living there, your connection with the area, your duration of residence and your 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.

The application of the Shah test will provide a sound preliminary basis for determining a person’s ordinary residence. Following application of the test, however, an important part of the statutory framework on ordinary residence – known as “the deeming provisions” – must still be considered before any determination is made.

6.3 Arranging care and support in accommodation outside of Lancashire: the ‘Deeming Provisions’

One of the reasons why determining ordinary residence is important is that the law prevents any local authority from avoiding or “exporting” its responsibilities under the Care Act 2014 by placing you into accommodation in a different geographical area.

There may be some cases where Lancashire County Council (or another local authority) considers that your care and support needs can only be met if you are living in a specified type of accommodation and then this accommodation arranged is in another area. When this happens, and the local authority places you “out of area” in a type of specified accommodation, the law “deems” that the financial responsibility for care and support remains with the original local authority that “placed” you out of area. Therefore, if you are placed ‘out of area’ by a local authority you are deemed to continue to be ordinarily resident in the area of the first authority, and do not acquire ordinary residence in the ‘host’ or second authority.

To do this, the law provides what are known as “deeming provisions”. These provisions mean that when you are placed out of area into certain types of accommodation – known as “specified accommodation” – you are considered to remain ordinarily resident in the council area that is placing you into that accommodation.

What this means in practical terms is that you are “deemed” or considered to continue to be ordinarily resident in the area you were ordinarily resident immediately prior to commencing living at the accommodation in question. In this way, the responsibility of meeting your needs remains with the “placing” or originating local authority – and that local authority cannot simply wash its hands of its duties simply because it has decided to place you elsewhere.

The “deeming provisions” only apply in three types of “specified” accommodation:

These are:

• Nursing homes and care homes;
• Shared lives schemes;
• Supported living/Extra Care housing.

So, if local authority A places you into any of the above types of accommodation in local authority area B, the responsibility for meeting eligible Care Act needs remains with local authority A – even though on a strict application of the Shah test, local authority B would be responsible. In this example, you are living in area B but are ordinarily resident in area A.

6.3 Things to consider about the ‘Deeming Provisions’

• The deeming provisions only apply where your care and support needs that can only be met by you living in one of the three types of specified accommodation.
• Need(s) must be determined by an assessment of needs and a care planning process
• The deeming provisions apply to you if you use a direct payment for your care, as long as the accommodation is the same as that specified in your care plan. This will usually be in relation to supported living arrangements where the direct payment will cover the care and support required (but not the cost of the accommodation).
• If you move to accommodation in a different area of your own free will, without Lancashire County Council making the arrangements, you would be likely to acquire ordinary residence in the area of the authority where the new accommodation is situated.
• The deeming provisions of the Care Act do not apply to Section 117 aftercare provided under the Mental Health Act. For more information on how ordinary residence works under the Mental Health Act, please see the Joint Policy for the Management of Section 117 Aftercare, Reviews and Discharge.

 6.5 Applying Ordinary Residence to NHS Accommodation

The deeming provision in the Care Act also applies to exclude NHS accommodation,

“NHS accommodation” means either a hospital or non-hospital NHS accommodation in a care home setting that is funded by the NHS. 

If you are in NHS accommodation you are treated as being ordinarily resident in the area where you were living before you went into hospital or into an NHS-funded care home placement.

Where your accommodation is joint funded by health and social care under the Care Act 2014, the deeming provisions will apply, as set out in Section 6.3, because the social care part of the package is provided under the Care Act 2014.

If you are receiving joint-funded aftercare under Section 117 of the Mental Health Act, please refer to the Joint Policy for the Management of Section 117 Aftercare, Reviews and Discharge.

6.6 Leaving NHS accommodation

When you leave NHS accommodation you are treated as being ordinarily resident in the area where you were living before you went into NHS accommodation (i.e. a hospital or into an NHS-funded care home placement).

Where it is not likely to be safe to discharge you from hospital unless arrangements for meeting your care and support needs are in place, the NHS body must notify the local authority in whose area you are ordinarily resident of this.

This will trigger a duty under the Care Act 2014 on that local authority to assess your care and support needs.

This will be the local authority in whose area you were ordinarily resident on admission to hospital, even if your care and support arrangement and/or accommodation is no longer available.

For example: If a person is ordinarily resident in area A and is then admitted to a hospital, on discharge from that hospital the local authority in area A still has the duty to assess for and meet any eligible care and support needs under the Care Act 2014. In addition, it is important to remember that someone can be ordinarily resident in one area, but physically living somewhere else (a person could be placed by the local authority in area A into a supported living setting in area B but – because of the deeming provisions – the person would still remain ordinarily resident in area A). Thus, following discharge from hospital, area A would still remain responsible for this person.

Where you are being discharged with no settled residence (see Section 7, Other Provisions, including Transition from Children’s Services, People of No Settled Residence and Prisoners), the NHS will notify the local authority in whose area the hospital is situated. That will also be the authority responsible for meeting your needs on discharge, due to the rule on “physical presence” for people of no settled residence. This type of situation should occur only rarely.

6.7 Continuing Healthcare (CHC)

Where you are being discharged from hospital, your potential eligibility for NHS Continuing Healthcare (CHC) must always be considered. CHC is a package of care provided by the NHS that meets assessed health and social care needs. It is not charged for and is available to you if you have been assessed as having a primary health need as set out in the National Framework for NHS CHC and NHS Funded nursing care.

Where a person has been provided with NHS accommodation as part of a package of NHS CHC, then prior ordinary residence is retained. Therefore, where a person is placed in a care home (or other accommodation funded by the NHS) in another local authority area for the purpose of receiving NHS CHC, they continue to be ordinarily resident in the local authority area in which they were ordinarily resident before entering the NHS accommodation.

If you are then discharged from hospital to a residential setting with NHS funding (awaiting your full CHC assessment) and it is later determined that you are not eligible for CHC funding, any eligible social care needs must be met by the local authority.

The local authority which would meet these needs would be the local authority where you were ordinarily resident at the point of your admission to hospital.

More information on CHC is available in the Continuing Healthcare (NHS) Policy.

Annex H (paragraphs 24-27) of the Care and Support Statutory Guidance contains more information on ordinary residence and CHC.

6.8 Needs that are not part of Section 117 aftercare

Under Section 117 of the Mental Health Act 1983 (the 1983 Act), local authorities together with integrated care boards (ICB) have a joint duty to arrange the provision of mental health aftercare services for people who have been detained in hospital for treatment under certain sections of the 1983 Act. Aftercare services must have both the purposes of ‘meeting a need arising from or related to the person’s mental disorder’ and ‘reducing the risk of a deterioration of the person’s mental condition and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder.’ The range of services which can be provided is broad.

If you are eligible for Section 117 aftercare services under the Mental Health Act 1983 you may still have eligible needs under the Care Act that fall outside the scope of your Section 117 aftercare plan. For example, you may have a physical disability or illness that has no direct bearing on your mental health.

The Care Act provides that, where you are being provided with accommodation under Section 117, you are treated as being ordinarily resident in the area of the local authority which has the duty to provide aftercare. So, the same local authority will be responsible for providing Section 117 aftercare and meeting any eligible care and support needs under the Care Act.

If you are not being provided with accommodation as part of your Section 117 aftercare, the rules on ordinary residence under the Care Act will apply. For more information on ordinary residence under the Mental Health Act please see the Joint Policy for the Management of Section 117 Aftercare, Reviews and Discharge.

In the Case of R (Worcestershire County Council) v Secretary of State for Health and Social Care (2023) the Supreme Court held the responsible local authority under s117 is the one where the person was ordinarily resident immediately before being detained. In addition, when considering ordinary residence under s117, local authorities should apply the Shah test i.e. the person’s abode which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether of short or long duration. Therefore, the deeming provisions do not apply to s117, and ordinary residence should be given its natural meaning.

7. Other Provisions, including Transition from Children’s Services, People of No Settled Residence and Prisoners

7.1 Transition from children’s services

Prior to the Cornwall judgment, a looked after child who had been placed in accommodation out of area retained the ordinary residence of the local authority who had made the placement, however upon the child turning 18 that presumption could be rebutted by the circumstances of the case. The Cornwall case declared that “an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it” and applied the deeming provision in the Children Act 1989 to the adult legislation.

This means that any person who moves from accommodation provided under the Children Act (1989) to accommodation provided under the Care Act 2014, which is accommodation to which the deeming provisions under the Care Act 2014 apply (see Section 6.3), remains ordinary resident in the local authority in which they were ordinarily resident under the Children Act 1989. This includes a situation where a child has been placed out of area under the Children Act 1989 as a looked after child and requires residential accommodation under the Care Act 2014 at age 18 as well as leaving care support under the Children Act 1989.

The accommodation to which the adult deeming provisions apply is ‘specified accommodation’ (under the Care Act) in circumstances where the adult’s needs can be met only if they are living in accommodation of a specified type. The types currently specified are:

• nursing/care homes;
• shared lives scheme accommodation; and
• supported living accommodation/extra care housing.

The duties towards the child under the Leaving Care Act 2000, such as education, remain with the local authority which was responsible prior to the child turning 18.  These are distinct and separate to social care needs and, if post 18 the child is not living in specified accommodation any responsibilities under the Care Act 2014, will rest with the local authority in whose area they now reside.

This extension of the deeming provision applies to transitions before and after the Care Act 2014.

7.2 People of no settled residence

Section 18 of the Care Act 2014 makes clear that local authorities have a duty to meet the needs of someone if they are present in its area but of no settled residence. Where doubts arise in respect of a person’s ordinary residence, it is usually possible for local authorities to decide that the person has resided in one place long enough or has sufficiently firm intentions in relation to that place, to have acquired an ordinary residence there. Therefore, it should only be in rare circumstances that we would conclude that someone is of no settled residence. For example, if a person has clearly and intentionally left their previous residence and moved to stay elsewhere on a temporary basis during which time their circumstances change, a local authority may conclude the person to be of no settled residence.

Where the person is of no settled residence (sometimes referred to as “no fixed abode”), the Care Act 2014 states that the local authority where the person is physically present should treat the person as ordinarily resident in its area.

Where there is any concern that a person may fall into this category, paragraphs 19.43 to 19.45 of the Care and Support Statutory Guidance should be consulted.

If the purpose of your presence in an area is not settled, the outcome may be that you are of no settled residence. In such a case, the duty to meet eligible needs would lie with the local authority in whose area you are physically present.

The Care Act make clear that local authorities have a duty to meet the eligible needs of people if they are present in its area but of no settled residence. In this regard, people who have no settled residence, but are physically present in the local authority’s area, should be treated in the same way as those who are ordinarily resident.

7.3 British citizens resuming permanent residence in England after a period abroad

A local authority may conclude that a person arriving from abroad is of no settled residence, including those people who are returning to England after a period of residing abroad and who have given up their previous home in this country.

See Care and Support Statutory Guidance Annex H: Ordinary Residence, British citizens resuming permanent residence in England after a period abroad.

7.4 Temporary absences

Having established ordinary residence in a particular place, this should not be affected by the individual taking a temporary absence from the area. The courts have held that temporary or accidental absences, including for example holidays or hospital visits in another area, should not break the continuity of ordinary residence, and local authorities should take this into account.

The fact that the person may be temporarily away from the local authority in which they are ordinarily resident, does not preclude them from receiving any type of care and support from another local authority if they become in urgent need (See Care and Support Statutory Guidance Annex H: Ordinary Residence, Persons in Urgent Need). Local authorities have powers to meet the needs of people who are known to be ordinarily resident in another area, at their discretion and subject to their informing the authority where the person is ordinarily resident.

7.5 Urgent need

The Care Act 2014 includes a power to provide for those in urgent need who are ordinarily resident in another area. Annex H of the Care and Support Statutory guidance provides guidance and scenarios where this might arise.

7.6 Safeguarding enquiries

The safeguarding enquiry duty on Lancashire County Council detailed in Section 42 of the Care Act 2014 arises in relation to adults in its area who may be experiencing or at risk of abuse or neglect, regardless of whether or not they are ordinarily resident here. See Adult Safeguarding Policy.

7.7 Deprivation of liberty safeguards

See also Deprivation of Liberty Safeguards

Where a deprivation of liberty is likely to occur for people without mental capacity, the managing authority of the person’s care home or hospital must request a standard authorisation for the deprivation of liberty from a supervisory body, namely a local authority.

The supervisory body will be the local authority in whose area the person is ordinarily resident, even if the person has been placed by the local authority or the Integrated Care Board in a care home in a different area. Where the individual is self-funding and has acquired ordinary residence in the area where the care home is situated, that local authority will be the supervisory body.

Where the person is of no settled residence at the time of the authorisation, the local authority in whose area the care home or hospital is situated will be the supervisory body. Annex H of the Care and Support Statutory guidance, (in particular paragraphs 51 to 63), give additional guidance.

7.8 Prisoners

The Council which is responsible under the Care Act 2014 for meeting the needs of prisoners during their sentence is the one in which the prison is situated.

For people leaving prison, the starting point is a presumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence, but as always this presumption can be rebutted – for example, by the wishes of the individual to move elsewhere or restrictions imposed on where they may live upon release.

Within Lancashire, this duty is met within five prisons which are located in the Lancashire County Council area:

• HMP Wymott
• HMP Garth
• HMP Kirkham
• HMP Lancaster Farms
• HMP Preston.

See also the policy on Prisons, Approved Premises and Bail Accommodation.

8. Self-funders

If you choose to move into permanent accommodation in another local authority area under private (e.g. family) arrangements, you will usually acquire ordinary residence in that new area.

If your needs changes or you discover you can no longer self-fund because your funds have been depleted, you can apply to the local authority to which you have recently moved to for an assessment of needs. If you have eligible needs for care and support, your ordinary residence will be the place to which you moved – and not your original local authority where you may have been resident for a considerable length of time.

The Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the charging rules councils must follow when arranging a care home placement.

If you are a self-funder, but are unable to make your own private arrangements with a care home without assistance, you can ask Lancashire County Council to meet your needs by arranging your care and support accommodation (which Lancashire County Council will normally do by arranging for an independent care home provider to provide the accommodation) but it is not under a duty to do so.

It may be that you have sufficient means to pay for your accommodation in a care home but are unable to enter into a private agreement with a care home. This may be because you do not have the mental capacity to do so and you either have no attorney or deputy to act on your behalf, or another person in a position to do so. In these circumstances, the local authority must meet your needs. Therefore, if your assessed needs are required to be met by the provision of accommodation in a care home, the local authority must provide that accommodation (and it will do so by arranging for an independent care home provider to provide it) for which the authority may charge you.

If you have capacity but are not able to manage the making of the arrangements without assistance, the local authority may provide information, advice and guidance, or refer you to an independent broker.

If the local authority uses its discretionary powers to meet your needs by arranging a care home in another local authority, and If your needs can only be met in a type of specified accommodation, you would remain ordinarily resident in Lancashire, even if the arranged accommodation is in another local authority area (and vice versa where you move to Lancashire from elsewhere). Before declining assistance, Lancashire County Council must first have considered all relevant factors including the consequences of the refusal to you and your family, the availability of other avenues of assistance and whether you would benefit from the services of an advocate. Full details must be communicated to you in writing.

It is good practice to notify the council where the care home is situated of the placement and the agreement regarding financial responsibility.

In such circumstances, if your needs change, or your financial resources change so that require financial assistance, you would be ordinarily resident in the local authority area which has arranged the placement and is currently meeting your needs.

9. Disputes

Where there is a dispute about which authority is responsible as there is a disagreement over where the individual is ordinarily resident – the end point is referral for resolution to the Secretary of State for Health and Social Care. Regulations set out detailed guidance of the steps that a local authority must take in order to make such a referral. However, a formal referral to the Secretary of State should be the last resort, and would in any case be managed by Lancashire County Council’s Ordinary Residence Steering Group.

Any disputes about ordinary residence must not adversely affect the meeting of a person’s needs: one local authority must accept responsibility on a provisional basis (and then follow-up, particularly in respect of any financial adjustments with the relevant other local authority once a final determination of responsibility has been made).

If this is in dispute the Care and Support (Disputes between Local Authorities) Regulations 2014 require the local authority in which the person is physically present to accept responsibility. They will be referred to as the ‘lead local authority’.

Taking the ‘lead’ role does not influence the Secretary of State for Health in determining responsibility.  The Secretary of State will not proceed to determine unless one local authority has provisionally accepted responsibility.

If the Secretary of State finds in favour of the ‘lead’ local authority then their costs are recoverable against the other local authority that should have been providing care and support for eligible needs. Local authorities should not provide reduced care packages pending determination and should meet all assessed needs.

Local authorities should make all efforts to resolve disputes locally wherever possible, including an early referral to in-house legal teams where differences of approach are identified.

10. Advocacy

Care and support should always be centred on you. Under the Care Act, Lancashire County Council must arrange for an independent advocate to facilitate your involvement with care and support needs in your assessment, care and support plan and any reviews of your care plan, as well as in safeguarding enquiries and Safeguarding Adult Reviews, if two conditions are met:

• If you have substantial difficulty in being involved in these processes.
• There is not an appropriate individual willing to support you.

Further information is available in the Independent Care Act Advocacy Policy. Please be aware that further duties to arrange an advocate also apply under the Mental Health Act and Mental Capacity Act (see Independent Mental Capacity and Mental Health Advocacy).

11. Safeguarding

 Lancashire County Council will follow its obligation under the Care Act to safeguard adults with care and support needs (whether or not it is meeting any of those needs) and ensure that its obligations are carried out in partnership with all agencies and organisations who may come into contact with you (see Adult Safeguarding Policy).

12. Further Reading

12.1 Relevant chapters

Assessment of Needs

Continuing Healthcare (NHS)

Discharge of People from Hospital with Care and Support Needs (excluding those discharged from mental health hospitals)

12.2 Relevant information

Chapter 19, Ordinary Residence, Care and Support Statutory Guidance (Department of Health and Social Care)

Ordinary Residence Guide: Determining Local Authority Responsibilities under the Care Act and the Mental Health Act (LGA)

See also Ordinary Residence Case Studies