Presentation is loading. Please wait.

Presentation is loading. Please wait.

THE CARE ACT 2014 ORDINARY RESIDENCE AND CONTINUITY OF CARE Monday 16 February 2015 Mary-Anne Anaradoh – Senior Lawyer LB Islington, Legal Services Department.

Similar presentations


Presentation on theme: "THE CARE ACT 2014 ORDINARY RESIDENCE AND CONTINUITY OF CARE Monday 16 February 2015 Mary-Anne Anaradoh – Senior Lawyer LB Islington, Legal Services Department."— Presentation transcript:

1 THE CARE ACT 2014 ORDINARY RESIDENCE AND CONTINUITY OF CARE Monday 16 February 2015 Mary-Anne Anaradoh – Senior Lawyer LB Islington, Legal Services Department

2 WHAT DOES THE CARE ACT 2014 AIM TO ACHIEVE? Simplifies the law about people aged 18 and over who need who need care and support; Clearer, fairer care and support; New duty of “wellbeing” for people needing care and support and their carers; Preventing and delaying needs for care and support; People having control of their care and support

3 When does the new law come into effect ? 1 April 2015 – Part 1 of the Care Act (but not the cap on care costs) 1 April 2016 – Part 1 of the Care Act, the cap on care costs, appeals, direct payments for residential care.

4 ORDINARY RESIDENCE

5 Why is “ordinary residence” important? Critical to the care and support system that LAs understand which people they are responsible for; LAs have a duty to meet needs for care and support in respect of adults who are ordinarily resident in their area; People need to know who i.e. which LA to contact when they need care and support; ‘Ordinary residence’ both now and under the Care Act is crucial in terms of deciding which LA is responsible for (i) meeting the care and support needs of adults and (ii)support needs of carers.

6 ORDINARY RESIDENCE – THE CURRENT LAW

7 Ordinary residence – the current position Part 3 of the National Assistance Act 1948; LAC(93)10: Approvals and Directions for Arrangements from 1 April 1993 Ordinary Residence: Guidance on the identification of the ordinary residence of people in need of community care services, England (October 2013) R v Barnet LBC (ex parte Shah) [1983] R v Waltham Forest London Borough Council, ex Parte Vale (1985) R (on the application of Cornwall Council) v SoS for Health [2014]

8 Ordinary residence – the current position Responsibility for providing residential accommodation under section 21(1) in Part 3 of the National Assistance Act 1948 is set out in section 24 of the 1948 Act; It is the local authority in which a person is ordinarily resident that has the duty to provide residential accommodation; Section 24(1) of the National Assistance Act 1948 LAC(93)10: Approvals and Directions for Arrangements from 1 April 1993

9 Ordinary residence – the current position LAs can treat persons of no settled residence or who are in urgent need as if they are ordinarily resident in their area and provide them with residential accommodation. Section 24(3) of the National Assistance Act 1948

10 Ordinary residence – the current position There is a power to provide residential accommodation to persons who are not ordinarily resident in the LA’s area, provided they have the consent of the other LA to do so. Section 24(4) of the National Assistance Act 1948

11 Ordinary residence – the current position Non-residential community care services Directions issued by the Secretary of State under section 29 of the 1948 Act impose a duty to provide non-residential community care services under section 29(1) where a person is “ordinarily resident” in the local authority’s area; Section 29(1)of the National Assistance Act 1948 LAC(93)10: Approvals and Directions for Arrangements from 1 April 1993

12 Ordinary residence – the current position The concept of “deemed ordinary residence” (1): Where a person is provided with residential accommodation under Part 3 of the National Assistance Act 1948, they are deemed to continue to be ordinarily resident in the area (if any) in which they were ordinarily resident immediately before the accommodation was provided. Section 24(5) of the National Assistance Act 1948

13 Ordinary residence – the current position The concept of deemed ordinary residence (2): Where a person is in receipt of NHS accommodation, they are deemed to be ordinarily resident in the area (if any) in which they were ordinarily resident immediately before they were provided with NHS accommodation. Section 24(6) of the National Assistance Act 1948

14 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? ADULTS WITH CAPACITY: The meaning of ‘ordinary residence’ or ‘ordinarily resident’ was set out by Lord Scarman in the case of R v Barnet LBC (ex parte Shah) [1983] as follows: ‘unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.’

15 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? Words to have their ordinary and natural meaning; Residence must be voluntarily adopted; Residence must be for settled purpose; Can be of long or short duration; No minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there. Is irrespective of whether they own, or have an interest in, a property in another local authority area, or where they are registered with a GP.

16 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? ADULTS LACKING CAPACITY: All issues relating to mental capacity are to be decided with reference to the Mental Capacity Act Capacity is presumed unless established to the contrary – section 1 MCA 2005; Test of incapacity in section 3 of the MCA 2005 provides that person is unable to make a decision for himself if he cannot: (a) understand the information relevant to the decision; (b) retain that information; (c) use or weigh that information as part of the process of making the decision; or (d) communicate his decision (whether by talking, using sign language or any other means).

17 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? ADULTS LACKING CAPACITY: Best interests Any act done or decision made (which would include a decision relating to where a person without capacity should live) must be done in the best interests of the person who lacks capacity. Section 1(5) Mental Capacity Act 2005

18 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? Working out best interests and best interests checklist: Section 4 of the Mental Capacity Act 2005

19 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? ADULTS LACKING CAPACITY: Before the case of R (on the application of Cornwall) v SoS for Health, 2 different tests applied. Both these tests were derived from the case of R v Waltham Forest London Borough Council, ex Parte Vale (1985) The Vale tests are based on the assumption that the person lacking capacity cannot have adopted their place of residence voluntarily, as required by the Shah test.

20 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? ADULTS LACKING CAPACITY: Vale test 1: The judge said that a young person with severe learning disabilities was ordinarily resident at her parents’ house where she was temporarily living at the time. She was in the same position as a small child who was unable to choose where to live. Where a person’s learning disabilities were so severe as to render them totally dependent on a parent or guardian then ‘the concept of her having an independent ordinary residence of her own which she has adopted voluntarily and for which she has a settled purpose does not arise’. The judge rejected the possibility of the young person having an ordinary residence in a place that she had left or in a place where she may go in the future.

21 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? ADULTS LACKING CAPACITY: Vale Test 2: Vale test 1 should only be applied when making decisions about ordinary residence cases with similar material facts to those in Vale. So in cases involving older people whose parents are deceased, people who have become ordinarily resident in an area and then lost capacity or where younger people who have either lived independently of their parents prior to losing capacity or have limited contact with them, this test may not be appropriate and the alternative approach set out in Vale should be used. Vale Test 2 involves considering a person’s ordinary residence as if they had capacity. All the facts of the person’s case should be considered, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person themselves to have adopted the residence voluntarily.

22 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? ADULTS LACKING CAPACITY: The Court of Appeal decision in the Cornwall case said LAs should no longer apply Test 1 in Vale. However permission to appeal to the Supreme Court has been granted so awaiting the decision of that court. (See also paragraph of the Care and Support statutory guidance)

23 What is the meaning of ‘ordinary residence’ or ‘ordinarily resident’ ? ADULTS LACKING CAPACITY: Pending the Supreme Court decision in the Cornwall LAs should take the following approach when determining the OR of persons who lack capacity: What is the centre or focus of the adult’s social and family environment? What are the purposes and intentions of his parents? Where does he have a pattern of regular living? (if has two homes); What is the greater emotional pull, parents or carers? (if has two homes); What is state of mind (not wishes) as to his residence? How long has he lived there? Why does he live there? Is residence stable or intermittent?

24 THE CARE ACT 2014 AND ORDINARY RESIDENCE

25 ASSESSMENT AND DUTY TO MEET NEEDS FOR CARE AND SUPPORT/SUPPORT LA duty to assess adult’s needs for carer and support/carer’s needs for support – sections 9 and 10 LA required to make determination as to whether any needs meet the eligibility criteria – section 13(1) If LA determines that an adult /carer has eligible needs, the LA must establish what could be done to meet the needs and whether the adult/and in the case of a carer the adult needing care, is ordinarily resident in the LA’s area – section 13(3) and (4)

26 THE CARE ACT 2014 AND ORDINARY RESIDENCE ASSESSMENT AND DUTY TO MEET NEEDS FOR CARE AND SUPPORT/SUPPORT Duty to meet adult’s needs for care and support which meet the eligibility criteria if the adult is ordinarily resident in the LA’s area or present in its area but of no settled residence – section 18 (1)(a) Power to meet adult’s needs for care and support if the adult is ordinarily resident in the LA’s area or present in its area but of no settled residence and there is no duty under section 18 (e.g. the adult does not have eligible needs) – section 19(1) Power to meet eligible needs of an adult if the adult is ordinarily resident in the area of another LA – section 19(2) Similar duties and powers exist in respect of carers – section 20

27 Ordinary residence provisions under the Care Act 2014 Sections 39 – 41 of the Care Act 2014 The Care and Support (Ordinary Residence)(Specified Accommodation) Regulations 2014 The Care and Support (Disputes between Local Authorities) Regulations 2014 Chapter 19 and Annexes J1 – J8 of the Care and Support Statutory Guidance; Transition arrangements?

28 HOW DO YOU DETERMINE ORDINARY RESIDENCE? No definition of ordinary residence the Care Act 2014 either; Therefore ‘ordinary residence’ or ‘ordinarily resident’ is to be give its ordinary and natural meaning; A person can only have one ordinary residence for the purposes of the Care Act.

29 HOW DO YOU DETERMINE ORDINARY RESIDENCE? The case law is still relevant: R v Barnet LBC (ex parte Shah) [1983] – meaning of “ordinary residence” R v Waltham Forest London Borough Council, ex Parte Vale (1985) R (on the application of Cornwall) v SoS for Health [2014] – Supreme Court decision currently awaited;

30 HOW DO YOU DETERMINE ORDINARY RESIDENCE? R v Barnet LBC (ex parte Shah) [1983] ‘unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.’

31 HOW DO YOU DETERMINE ORDINARY RESIDENCE? Adults lacking capacity: Decision making under the Mental Capacity Act 2005 applies

32 ORDINARY RESIDENCE AND CARERS For adults with care and support needs, the LA in which the adult is ordinarily resident is responsible for meeting eligible needs. For carers, however the responsible LA will be the one where the adult for whom they care is ordinarily resident. Paragraph 19.6 of the statutory guidance

33 THE ORDINARY RESIDENCE PROVISIONS IN THE CARE ACT 2014 Deemed ordinary residence Where an adult has needs for care and support which be met only if the adult is living in accommodation of a type specified in regulations and the adult is living in accommodation in England of a type so specified, the adult is to be treated as ordinarily resident: (a)In the area in which the adult was ordinarily resident immediately before the adult began to live in the accommodation of the type so specified in the regulations; (b)If the adult was of no settled residence immediately before the adult began to live in accommodation of a type so specified, in the area in which the adult was present at the time. Section 39(1) of the Care Act 2014

34 THE ORDINARY RESIDENCE PROVISIONS IN THE CARE ACT 2014 Deemed ordinary residence The specified types of accommodation are: (a)care home accommodation (b)shared lives scheme accommodation (c)supported living accommodation The Care and Support (Ordinary Residence)(Specified Accommodation) Regulations 2014

35 THE ORDINARY RESIDENCE PROVISIONS IN THE CARE ACT 2014 Deemed ordinary residence NHS accommodation – Where an adult is being provided with NHS accommodation, they are to be treated as ordinarily resident in the area where they were ordinarily resident immediately before the accommodation was provided, or if the adult was of no settled residence, immediately before the accommodation provided, in the area in which the adult was present at that time. - Section 39(5) CA 2014

36 ORDINARY RESIDENCE OF PRISONERS/PERSONS IN APPROVED PREMISES Individuals in prison are NOT ordinarily resident there as they are not living there voluntarily; Responsibility for assessment and care provision rests with the LA where the prison is located; On release from prison their ordinary residence will generally be in the authority where they intend to live on a permanent basis. - Paragraphs – of Chapter 17 of the statutory guidance: Prisons, approved premises and bail accommodation

37 ORDINARY RESIDENCE OF PRISONERS/PERSONS IN APPROVED PREMISES Governor of the prison where the person is moving from to inform the LA where the prison is located of the impending move (LA1) LA1 to retain responsibility if the move is to another prison in the same area; If move is to a prison in another LA area (LA2) LA1 to inform LA2 once it has been informed of the move by the prison; LA2 to assess the prisoner before they move but if they have not done so before the move, it must continue meeting needs met by LA1 until it has carried out its own assessment. - Paragraphs – of Chapter 17 of the statutory guidance: Prisons, approved premises and bail accommodation

38 ORDINARY RESIDENCE OF PRISONERS/PERSONS IN APPROVED PREMISES Deeming provisions in section 39 don’t apply; However reasonable to follow the approach in section 39 i.e. where a person requires a specified type of accommodation to meet their needs on release, then start from presumption they remain ordinarily resident in which they were OR before the start of their sentence; Where the person being released to a new area, the local authority which they plan to move to should undertake the assessment; Probation provider, and local authority providing care and support to start joint planning for release in advance, to ensure viability of resettlement plans. - Paragraphs – of Chapter 17 of the statutory guidance: Prisons, approved premises and bail accommodation

39 ORDINARY RESIDENCE OF PRISONERS/PERSONS IN APPROVED PREMISES LA for area of prison being moved to Either LA where living before imprisonment or area moving to on release Same LA where prison is located LA where the prison is located Persons in prison and approved premises Moving to a prison in the same area Moving to prison in another area Leaving prison

40 ORDINARY RESIDENCE TRANSITION TO ADULT CARE AND SUPPORT Responsibility for meeting needs for care and support for a young person on reaching 18 transfers from the Children Act 1989 to the Care Act 2014; Section 105(6) of the Children Act 1989 says that when determining the ordinary residence of child for the purposes of the 1989 Act, any period in which the child lives in a school or other institution pursuant to a supervision order under the 1989 Act, or a youth rehabilitation order under Part 1 of the Criminal Justice Act 2008, or while he is being provided with accommodation under the 1989 Act by or on behalf of the authority is to be disregarded;

41 ORDINARY RESIDENCE TRANSITION TO ADULT CARE AND SUPPORT LAs to start from the assumption that the young person remains ordinarily resident in the area in which he was ordinarily resident for the purposes of the 1989 Act the day before reaching 18; However, this is only a starting point and the LA must go on to consider all the facts of the case under the Care Act 2014, applying the relevant tests including Shah; Having done so it may be that the starting point that the young person remains ordinarily resident in the LA responsible under the 1989 can be displaced.

42 ORDINARY RESIDENCE TRANSITION TO ADULT CARE AND SUPPORT EXAMPLE Sunil is 18 years old and has physical and learning disabilities. Since the age of 10 he has been accommodated in a specialist residential school under section 20 of the 1989 Act. The school is located in local authority B but paid for by local authority A, the local authority where his family live. For the purposes of the 1989 Act, Sunil is the responsibility of local authority A. Now that Sunil is 18, he is ready to leave school. His needs are assessed and it is decided that he should remain living in residential accommodation. As Sunil has capacity to make some decisions for himself, he is able to express a desire to remain living in local authority B, near his friends from school and within the local community to which he feels he now belongs. Therefore, at the end of the school year he moves into residential care in local authority B and his accommodation changes from being provided under the 1989 Act to being provided under the 2014 Act.

43 ORDINARY RESIDENCE TRANSITION TO ADULT CARE AND SUPPORT EXAMPLE (CON’TD) In these circumstances, the starting presumption is that Sunil is ordinarily resident in local authority A as this is the local authority in which he was ordinarily resident when he turned 18. However, this is only a starting presumption and it may be rebutted by considering all the facts of Sunil’s case under the 2014 Act. Sunil has been living in local authority B for 8 years and he has expressed a wish to remain there as he feels part of the local community. Although his family still live in local authority A, their home is not a base to which he returns often, other than for short spells over Christmas and other occasional events. Therefore, in line with the settled purpose test in the [Shah] case, it seems that Sunil has adopted local authority B voluntarily and for settled purposes. As such, the presumption that he remains ordinarily resident in local authority A can be rebutted: for the purposes of the 2014 Act, he is ordinarily resident in local authority B.

44 ORDINARY RESIDENCE TRANSITION TO ADULT CARE AND SUPPORT EXAMPLE (CONT’D) As Sunil is being provided with residential accommodation, section 39(1)(a) of the 2014 Act applies and he is deemed to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before residential accommodation was provided for him. Immediately before Sunil entered residential accommodation under section 39 of the 2014 Act, he was living in local authority B where he was ordinarily resident for the purposes of that Act. Therefore, in Sunil’s case, the deeming provision does not change his ordinary residence. - Care and Support Statutory Guidance – Annex H: Ordinary residence Annex H8, Young people in transition from children’s services to adult care and support.

45 THE ORDINARY RESIDENCE PROVISIONS IN THE CARE ACT 2014 The ordinary residence of persons being provided with aftercare under section 117 of the Mental Health Act 1983 The concept of ordinary residence has now been extended to the section 117 aftercare provisions. As a result of amendments made to section 117 of the 1983 Act by the Care Act 2014, the local social services authority responsible for the purposes of section 117 after care will be the local authority for the area where P was ordinarily resident immediately before being detained. If the individual was not ordinarily resident anywhere then it is the area where is sent on discharge by the hospital in which he was detained. - Section 75(3) CA 2014 and R v Mental Health Review Tribunal Ex p Hall [1999]

46 THE ORDINARY RESIDENCE PROVISIONS IN THE CARE ACT 2014 The ordinary residence of persons being provided with aftercare under section 117 of the Mental Health Act 1983 (“section 117 aftercare”): Also, for the purposes of Part 1 of the Care Act 2014, an adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 is to be treated as ordinarily resident in the area of the LA which has the duty to provide the adult with section 117 aftercare. Section 39(4) of the Care Act 2014

47 THE ORDINARY RESIDENCE PROVISIONS IN THE CARE ACT 2014 The ordinary residence of persons being provided with section 117 aftercare: EXAMPLE: P lives in and is ordinarily resident in LA1 when he is detained under section 3 of the Mental Health Act He is then discharged to s117 accommodation in LA2. If P has community care needs beyond the section 117 aftercare package e.g. a significant physical disability which means he has eligible needs, then LA1 not LA2 is the responsible LA because P is deemed to be ordinarily resident in the area of the LA which has the section 117 responsibility.

48 CROSS BORDER PLACEMENTS Where a person in England, who has care and support needs and requires residential accommodation to meet those needs, is provided with that accommodation in another part of the UK by an LA, generally this does not result in a transfer of that authority’s responsibility for that person. Paragraphs 2 to 4 make similar provision in respect of placements in England of people from Wales, Scotland or Northern Ireland which are arranged under the relevant Welsh, Scottish or Northern Irish legislation. These paragraphs also make similar provision in respect of cross-border placements not involving England i.e. Wales-Scotland, Scotland-Northern Ireland and Northern Ireland-Wales - Schedule 1 CA 2014, Cross border placements

49 CROSS BORDER PLACEMENTS If authorities fall into dispute, for example if a local authority which has made a cross-border placement falls into dispute with the authority in whose area that person is placed, the authorities involved may request a determination of the dispute to be made. - Schedule 1 CA 2014, Cross border placements and the Care and Support (Cross Border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014

50 ORDINARY RESIDENCE DISPUTES If two or more local authorities fall into dispute about where a person is ordinarily resident, or about a person’s continuity of care and support, and cannot resolve the question locally, the local authorities involved may request a determination of ordinary residence to be made by the Secretary of State or a person appointed by the Secretary of State; LAs can request a review within three months of the original determination being made - Section 40 CA 2014 and the Care and Support (Disputes between Local Authorities) Regulations 2014

51 ORDINARY RESIDENCE DISPUTES Regulation 2 - sets out which authority is responsible for meeting an individual’s needs until the dispute is resolved; Regulation 3 - provides for the steps to be taken by local authorities to try to resolve the dispute prior to referring it for determination by the Secretary of State under section 40 Regulation 4 - sets out the documentation that is to be supplied by local authorities when making a referral; Regulations 5 and 6 set out slightly modified versions of these provisions for specific cases arising solely under section 48 of the CA 2014 Regulation 7 - provides for reimbursement between authorities when the effect of a revised determination is that sums paid under a previous determination were not owed. - The Care and Support (Disputes between Local Authorities) Regulations 2014

52 ORDINARY RESIDENCE DISPUTES Where an LA has been meeting an adult’s needs for care and support and it transpires that the adult was either some or all of that time the responsibility of another borough; the local authority concerned may recover from the other local authority “the amount of any payments it made towards meeting the needs in question at a time when the other local authority was instead liable to meet them…” - Section 41 CA 2014

53 ORDINARY RESIDENCE CASE STUDY EXERCISE

54 CONTINUITY OF CARE AND SUPPORT

55 Continuity of care and support when moving area The Care Act 2014 ensures that people still receive care (i.e. and it is uninterrupted) even when they move to another area.

56 Continuity of care and support Sections 37 – 38 of the Care Act 2014 The Care and Support (Continuity of Care) Regulations 2014 The Care and Support (Disputes between Local Authorities) Regulations 2014 Chapter 20 of the Care and Support Statutory guidance

57 Continuity of care and support The CA 2014 sets out 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. The purpose of these provisions is to require the respective local authorities to work together so as to ensure that a person who moves local authority area does so with no interruption to their care. - Sections 37 and 38 CA 2014

58 Continuity of care and support The receiving authority (i.e. the second authority) is required to continue to meet the needs which the first authority had been meeting, from the day of the adult’s arrival in the area if the second authority has not completed the assessment on the day of the move, or if it has completed the assessment, but has not put in place the necessary arrangements to meet the adult’s needs for care and support. - Section 38, CA 2014

59 Continuity of care and support NOTIFICATION AND ASSESSMENT DUTIES Section 37 CA 2014 sets out a number of notification and assessment duties which must be followed when an adult is moving to the area of another local authority. The duties apply in three types of situation set out in section 37(1) – (3): Section 37(1): An adult’s needs for care and support are being met by a local authority (“the first authority”) under section 18 or 19 of the Act; and The adult notifies another local authority (“the second authority”), or the second authority is notified on the adult’s behalf that the adult intends to move to the area of the second authority; and The second authority is satisfied that the adult’s intention is genuine

60 Continuity of care and support NOTIFICATION AND ASSESSMENT DUTIES OR Section 37(2) The adult is not having their needs for care and support met under section 18 or 19, but the first authority is keeping a care account on behalf of an individual who is funding their own care; and The adult notifies the second authority or the second authority is notified on the adult’s behalf that the adult intends to move to the area of the second authority; and The second authority is satisfied that the adult’s intention is genuine.

61 Continuity of care and support NOTIFICATION AND ASSESSMENT DUTIES Section 37(3) An adult’s needs for care and support are being met by the first authority under section 18 or 19 by the first authority arranging for the provision of accommodation in the area of the second authority; and The adult notifies the second authority (or that authority is notified on the adult’s behalf) that the adult intends to move out of that accommodation but to remain, and be provided with care and support at home or in the community, in the second authority’s area; and The second authority is satisfied that the adult’s intention is genuine

62 Continuity of care and support NOTIFICATION AND ASSESSMENT DUTIES How does the LA determine whether the intention to move is genuine? Paragraph of the statutory guidance says: “To assure itself that the intention is genuine, the second authority should: establish and maintain contact with the person and their carer to keep abreast of their intentions to move; Continue to speak with the first authority to get their view on the person’s intentions; Ask if the person has any information or contacts that can help to establish their intention.”

63 Continuity of care and support NOTIFICATION AND ASSESSMENT DUTIES The process that must be followed when an adult is moving to the area of another local authority (in the circumstances referred to above) is set out in section 37(4) – (13) – see attached table.

64 CONTINUITY OF CARE AND SUPPORT Where the second authority has not carried out the assessment required under section 37(6) before the person moves into its area, or has done so, but has not taken the other steps required to meet the adult’s needs, the second authority has a duty to meet the needs which the first authority had been meeting, from the day of the adult’s arrival in this area. - Section 38(1)(a), CA 2014

65 CONTINUITY OF CARE AND SUPPORT The second authority is also under a duty to continue to update the person’s care account by the amount set by the first authority. Where the first authority has not been meeting the adult’s needs under section 18, but has provided an independent personal budget, the second authority must only continue the adult’s care account. - Section 38(1)(b), CA 2014

66 CONTINUITY OF CARE AND SUPPORT The “second authority” is under a duty to continue to meet the person’s, and potentially their carer’s, needs until it has carried out its own assessment. - Section 38(2)CA 2014

67 CONTINUITY OF CARE AND SUPPORT Matters the local authority must have regard to when performing the duty under section 38(1): (a) the contents of any care and support plan supplied to the authority under section 37(5)(a) of the Act (documents to be supplied by first authority where second authority is satisfied as to genuineness of intention to move) in relation to the relevant adult; (b) the contents of any support plan supplied to the authority under section 37(5)(e) of the Act in relation to any relevant carer of the relevant adult; (c) the outcomes that the relevant adult wishes to achieve in day-to-day life; (d) the outcomes that any relevant carer of that adult wishes to achieve in day-to-day life; - Care and Support (Continuity of Care) Regulations 2014

68 CONTINUITY OF CARE AND SUPPORT Matters the local authority must have regard to when performing the duty under section 38(1): (e) the outcomes that any relevant carer of that adult wishes to achieve in day-to-day life; (f) the views and preferences of any relevant carer of that adult as to how the authority should meet that carer’s needs for support; - Care and Support (Continuity of Care) Regulations 2014

69 CONTINUITY OF CARE AND SUPPORT Matters the local authority must have regard to when performing the duty under section 38(1) (cont’d) (g) any relevant difference between the relevant adult’s circumstances before and after the day of the adult’s intended move, including in relation to— (i)access to a carer; (ii)suitability of living accommodation; (iii)location of living accommodation in terms of its proximity and accessibility to necessary facilities or services in the local community including— (aa)medical services, (bb)public transport, (cc)educational facilities, and (dd)recreational facilities or services; and (iv)the availability of support from family members, friends, neighbours and the wider community.

70 CONTINUITY OF CARE AND SUPPORT Matters the local authority must have regard to when performing the duty under section 38(1) (cont’d): For the purposes of paragraph (1)(g) in regulation 2 above, a difference is relevant if it is likely to have a significant effect on the well-being of the relevant adult during the period when that adult’s needs for care and support are being met under section 38(1) of the Act. - the Care and Support (Continuity of Care) Regulations 2014

71 TRANSITIONAL PROVISIONS ?? Awaiting transitional provisions with regard to the regulations and guidance for ordinary residence: For example: What will happen in the case of someone who began to live in supported living accommodation before 1 April 2015 – how will their ordinary residence be determined? What happens in the case of disputes on ordinary residence which have not been resolved by 1 April 2015?

72 CONTINUITY OF CARE CASE STUDY EXERCISE

73 QUESTIONS?


Download ppt "THE CARE ACT 2014 ORDINARY RESIDENCE AND CONTINUITY OF CARE Monday 16 February 2015 Mary-Anne Anaradoh – Senior Lawyer LB Islington, Legal Services Department."

Similar presentations


Ads by Google