Department of Health
Published: 16 May, 2014
guidance on ordinary residence
The Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014
The Care and Support (Disputes about Ordinary Residence, etc.) Regulations 2014
Back to ordinary residence
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There are situations – probably quite rare but important to the people concerned – where the POWER (not the duty) to fund ‘support in the home’ has been used under the relevant section of the National Assistance Act to enable a person to live outside the area. The same factors would apply as with the specified accommodation rules, but with historic cases arrangements have been made with valid good practice reasons because there was not such range of specialist (e g learning disability) providers in existence. are good practice reasons for this, whether they do or do not have mental capacity. The accommodation could be part 2 rather than part 3 because in historic cases there was not the range of specialist housing providers that exist now.and an agreement between both authorities has been reached beforehand.
It would be helpful to include an example because the emphasis has always been on part 3 accommodation and it would be good to include part 2 accommodation as well.
I think it would be reasonable to apply ‘preserved rights’ to arrangements reflecting good practice and that comply with legislation in force at the time.
examples of specified accommodation would be helpful. Where care and support alone are being funded, presumably the accommodation gets paid for by housing benefit unless one can afford the rent. There are specialist providers of individual dwellings whose tenants’ care and support cost are met in a variety of ways an I might be able to provide an example or suggest one.
The implications are not at all clear
1 dwellings where adaptations are present and needed
2 nursing care is needed
3 prompts for oral/hair care etc are needed
Classification 1 wouod mean that two neighbours with the same needs and in identical accommodation are treated differently i.e. one has moved into accommodation that some one else had put in adapatations, and their neighbour gets some installed when already living there.
Classification 2 would trigger registration. would that apply to an indiviudal dwelling e.g. an elderly relative of mine if they sadle need Macmillan care or some visits by nurses? What is the definition of nursing care? Everyone knows what nursing homes are and they aleady have to be registered; so what are the situations that are in, or out of, this new category? If some residents in a scheme need nursing care, does the new rule aply to the scheme as a whole or to the apartments currently occupied by people in need of nursing care?
Classification 3 does not require registration; so what advantage does it confer on peole who have this degree of vulnerability?
Do any disadvantages befall them, such as losing entitlement to the state benefits available to people who receive care in the home e.g. Housing Benefit, disabiity benefits, PIP, Universal benefit – i.e. anything above the personal allowance (which is a minimum but if more is negotiated the costs get transfered to social care budgets).
“circumstances in which personal care is available if required” is too much of a catch-all – could be stretched to domicilliary care!
The definitions do not cover the staying put arrangements where continued foster care under supported lodging arrangements is in place or where for example a person chooses to remain in an OOB placement under staying put BUT adult services believe that the persons needs can be met in borough and not in any of these types of accommodation. It is therefore not clear which LA is responsible for OR in circumstances where a young Looked After Person voluntarily remains in their OOB placement, where the responsible Local Authority (adult services) deems that their eligible needs can be met in an alternative and most cost effective way.
The definition of shared lives accommodation is too wide as the “arrangement” does not have to be within a LA Shared Lives scheme. For example it would cover fostering; staying put arrangements; private family arranged fostering or “boarding out” which the “previous LA may have no knowledge of or which would cause safeguarding concerns. The wording should require this to be within an accepted LA scheme for Shared Lives.
The definition of shared Lives and other accommodation does not include people whose main need for care and support arises from difficulties managing their behaviour although these are often considered for shared lives or residential accommodation eg high functioning Asperger’s/autism spectrum cases.
We welcome the expansion of the ordinary residence test beyond residential care homes to cover supported living arrangements. The market for different supported living and care-ready housing options is underdeveloped. Providers looking to scope and develop exciting new models have had to take on the lion’s share of the risk and local authorities have held back from commissioning schemes due to concerns about funding ongoing care packages. Extending the ordinary residence test removes some of this disincentive for future development as local authorities can share the overall number of the care packages in any one scheme. This will assist local authorities to fulfil their duty to promote diversity within the local social care market, as set out in Section 5 of the Care Act.
However, the current definitions in the regulations of supported living require amending to ensure that the ordinary residence rules apply within the variety of supported living accommodation models that exist, and others that could be developed. Amending the regulations to reflect this will enable a greater diversity of supported living products to be encouraged and developed, promoting diversity of services in line with Section 5 of the Care Act.
Currently the regulations on supported living at (5) include two categories, the second of which requires personal care to be available (b). Personal care is defined in (2) a), but this definition does not correspond to the list of basic care activities in the eligibility criteria. As a result we are concerned that some groups may not be covered by these provisions, such as some people with mental health issues who do not require personal care as set out in (2) a), but nonetheless require care or support and are eligible. To ensure the regulations are not overly restrictive, the definition of “Supported living” at (5) (b) should be amended to:
5) (b) accommodation in premises which are designated (whether or not specifically designed or adapted for the purpose) for occupation by adults with needs for care and support (to enable them to adjust to living more independently).
I agree that restricting choice to designated housing seems arbitrary. Importantly, innovative approaches are being encouraged as part of the transformation of care for people at risk of going into behavioural units or of not being able to get out of them. Accessing any type of tenure, not necessarily within the area of origin, can increase opportunities for meeting individual needs. There are many sound reasons for living OOB, such as being safe from abuse.
It is not clear whether the supported living definition also covers tenancies with private landlords. Locally we have a number of people with learning disabilities or autism with private landlords who are in receipt of commissioned support to enable them to live more independently. In some instances these arrangements were made by another authority.
1. The definition of Nursing / care homes is clear and workable as this is similar to the current situation.
2. The definition of Supported Living Accommodation lacks clarity. We feel that the regulations and the guidance for them will lead to confusion and disputes if they are not rectified.
a. Regulation 5 refers to ‘Supported living etc – what does the ‘etc’ mean? This needs to be defined further or removed.
b. People who need to be supported with their daily living do not necessarily need daily personal care as defined in Regulation 1 a or b but sometimes need support and prompting with personal safety, finances, socialisation and daily activities not related to personal care.
c. Under Regulation 5 (1) (a) the terms ‘specifically designed’ and ‘adapted’ need to be defined and described in more detail in the guidance.
d. The regulations and guidance do not mention tenancy agreements – where does tenancy come into play? If someone has the mental capacity to sign a tenancy agreement in the same way as anyone else who moves area would become ordinarily resident in the new area, why would people signing supported living arrangement tenancies be any different?
e. The regulation is written in a way that seems to say that everyone receiving care in their own home is in supported living. It needs to be clarified and include exclusions.
f. ‘Supported living’ is a model of care NOT a type of accommodation therefore the use of the term is ambiguous and the definitions used do not adequately define it. ‘Accommodation with support’ would be a better description to use.
g. Regulation 5 (1) (b) describes supported living as we understand it to be.
h. However, under 5 (1) (b) ii it is unclear if this means 24 hour personal care being available or not.
i. In the guidance under paragraph 19.26 there needs to be a clear definition of the two types of supported living.
j. Extra care housing is mentioned in the guidance in paragraph 19.26 but is not defined as such in the regulations. This needs to be defined as it is not clear why this would be included. Extra care housing is a private and voluntary arrangement made between individuals not a placement.
3. The shared lives legislation is complex and each shared lives scheme has its own rules. For example, some schemes only allow for local people to live in the scheme. This legislation is saying that Shared Lives is now becoming a placement for people who need support.
4. The guidance does not mention the difference between people who have capacity to decide where they want to live and those who do not. We feel that this is a crucial distinction that is not clear in the regulations or guidance. Anyone who lacks capacity will have a best interest decision prior to being placed. People who do have capacity will choose to move to accommodation with supported living or into a shared lives scheme based on their own preferences and needs in the same way as people move to private houses and accommodation do so. It is not therefore clear that there is a justification for their previous local authority to fund them in their new area. The guidance therefore needs to be much clearer when looking at distinction between those who have capacity to make decisions about their living arrangements and those who do not.
5. We believe the lack of distinction between those who lack capacity and those who have it is detrimental to the wellbeing and personalisation concepts that the Act seeks to promote. A person with capacity residing in a supported living scheme will surely be better managed by the authority local to them as the care managers in that area will be best placed to carry out timely visits and reviews and will have an in depth knowledge and understanding of the services in that area.
The Housing LIN considers that the wording of the guidance relating to the Supported Living/extra care housing category is not clear enough and there are some important omissions.
The wording in the regulations is as follows:
Supported living etc
(1) For the purposes of these regulations “supported living accommodation” means—
(a) accommodation in premises which are specifically designed or adapted for occupation by
adults with needs for care and support to enable them to live as independently as possible;
(b) accommodation which is provided—
(i) in premises which are intended for occupation by adults with needs for care and
support (whether or not the premises are specifically designed or adapted for that
(ii) in circumstances in which personal care is available if required.
(2) The accommodation referred to in paragraph (1)(a) does not include adapted premises where the adult had occupied those premises as their home before the adaptations were made.
(3) For the purposes of paragraph (1)(b) personal care may be provided by a person other than the person who provides the accommodation.
• The boundaries in category 1b seem unclear. What are the limits to “in circumstances in which personal care is available if required”? In extra care housing, how much care constitutes “circumstances in which personal care is available if required”? Some so-called extra care schemes these days no longer have a care presence block contracted and may not have round-the-clock personal care available on site. There may be a single on-site provider from whom residents can choose to purchase their care, or there may not be. Therefore, bii) needs to make clear that the provision of personal care is an intrinsic part of the offer, even if the individual chooses to obtain their planned care elsewhere…assuming that is what is intended by the regulations.
“supported living/extra care housing – specialist or adapted accommodation, in which personal care is also available, usually from a different provider. It should be noted that there are two types of supported accommodation defined in the regulations, and the availability of personal care is not a requirement of the first type, which can be accommodation alone”;
• It would be clearer if the wording in the regulation (revised as suggested) were to be used here. It could be argued that sheltered housing is specialist or adapted and also has personal care available, albeit that it is not an intrinsic part of the offer.
• It would be more accurate to say “sometimes” from a different provider. It is quite common to have one organisation managing both the housing and the care
In addition, in paragraphs 19.27 and 19.30, given that care and support plans are intended to be based on outcomes desired by the individual (albeit agreed by the council) and that the principle of best interests and personalisation are deemed important, why is the word “only” used in these clauses? Even if the needs could be met through other types of accommodation or support, the Housing LIN considers that the determining factor should be the best solution, not the “only” one.
In paragraph 19.25, using the term “placing” may be useful for the purposes of defining ordinary residence. However, while the care and support plan may specify a move to extra care housing as the setting within which care and/or support will be provided, the authority is not actually making a placement in the way they would be into residential care. Once the move has taken place, the LA is only responsible for arranging or funding the care and support element of the care plan. This is an important principle. Coupled with the lack of clarity in Chapter 15 around the legal limits of councils responsible for social care in relation to housing, councils may increasingly blur the distinction between residential care and specialist housing when the distinction is important for ethos, outcomes, funding streams, regulation, rights and responsibilities. The wording across all of the Care Act guidance should reflect that. Those with capacity to do so choose to accept the offer of, and sign, a tenancy or lease at a supported living scheme. Those who do not have the capacity to do so have a best interests decision made and someone with the legal authority to do so (Attorney under Financial LPA, Court of Protection order or court appointed deputy) sign the tenancy or lease. The term “sending” authority is likely to have fewer negative connotations than “placing”.
Also, very importantly, it is vital that those supporting a person to develop a care and support plan DO consider any housing options that may deliver the agreed outcomes for meeting care and support needs. However, developing further the points in the previous paragraph, inclusion in the care and support plan can only be done in collaboration with the local housing authority (ies) and/or relevant housing providers since local authorities with responsibility for adult social care cannot arrange a housing solution in isolation (See also the Housing LIN responses to questions 38, 53 and 55). Where a cross-border solution is considered, not only does the question of responsibility for care costs arise; so does the question of responsibility for housing costs if the person is not a self-funder, for example entitlement to housing benefit. The rules in relation to this may not be changing but the Housing LIN considers that the guidance needs to clarify this one way or another. In addition, the ASC staff member would need to work within the nomination rights and housing eligibility criteria in the receiving authority. This too needs inclusion.
And finally in paragraph 19.19, the relevance of “parents” in this clause is not at all clear. This may be intended to apply to people with a learning disability, but what difference would it make if their parents were still alive and they had considerable contact with them?
In all circumstances the funding should travel with the individual requiring accommodation, care and support, eg the geographical area in which an individual was born/has resided for most of his her life should retain funding responsibility irrespective of whichever other local authority area the individual might move to. This would negate any Ordinary Residence rules.
There is no perfect solution, and Winterbourne is a dramatic example of the the practical problems of oversight from a distance. That can be overcome to an extent by all authorities having it made extremely clear to them that they are responsible for the welfare of ALL vulnenerable people living within their area and maintaining a central record about them. This system could be beefed up by regular updating and liaison with the commissioning authority.
The advantages of leaving financial responsibility with the autority that originally arranged the placement is that it is much much simpler (as the previous comment points out) and also it would motivates authorities to develop their own services instead of exporting people to areas where they have no connections or support networks.
There would be a degree of congregation where people attend special colleges and want to remain in that area; if they go to university with individualised support then the situation would be no different from the larger and more widespread university towns.
On balance the retention of funding responsibility by the orignal commissioner/s of services ilooks like the best solution.