Adult Social Care Glossary, v 0.6

How to determine ordinary residence

19.12 The local authority's responsibility for meeting a person's eligible needs under the Care Act is based on the concept of ordinary residence. However, there is no definition of ordinary residence in the Care Act. Therefore, the term should be given its ordinary and natural meaning.

19.13 In most cases, establishing the person's ordinary residence is a straightforward matter. However, this is not always the case. There will be circumstances in which ordinary residence is not as clear cut, for example when people spend their time in more than one area, or move between areas. Where uncertainties arise, local authorities should always consider each case on its own merits.

19.14 The concept of ordinary residence 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 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: "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."

19.15 Local authorities must always have regard to this case when determining the ordinary residence of adults who have capacity to make their own decisions about where they wish to live. Local authorities should in particular apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.

19.16 For people who lack capacity to make decisions about their accommodation and for children transitioning into adult social care services, the judgment in the case of R (on the application of Cornwall Council) Secretary of State & Ors [2015] UKSC46 (Cornwall) is appropriate because a person’s lack of mental capacity may mean that they are not able to voluntarily adopt a particular place of residence.

Specified types of accommodation
2.—(1) Subject to paragraph (2), the following types of accommodation are specified for the purposes of section 39(1) of the Act (where a person is treated as ordinarily resident)—
(a) care home accommodation (see regulation 3);
(b) shared lives scheme accommodation (see regulation 4); and
(c) supported living accommodation (see regulation 5).

(2) The types of accommodation referred to in paragraph (1) are specified in relation to an adult for the purposes of section 39(1) of the Act only if the care and support needs of the adult are being met under Part 1 of the Act while the adult lives in that type of accommodation.

3. For the purposes of these Regulations “care home accommodation” means accommodation in a care home within the meaning given by section 3 of the Care Standards Act 2000.

4. For the purposes of these Regulations “shared lives scheme accommodation” means accommodation which is provided for an adult by a shared lives carer, and for this purpose—

“shared lives carer” means an individual who, under the terms of a shared lives agreement, provides, or intends to provide, personal care for adults together with, where necessary, accommodation in the individual's home;
“shared lives agreement” means an agreement entered into between a person carrying on a shared lives scheme and an individual for the provision, by that individual, of personal care to an adult together with, where necessary, accommodation in the individual's home; and
“shared lives scheme” means a scheme carried on (whether or not for profit) by a local authority or other person for the purposes of—
(a) recruiting and training shared lives carers,
(b) making arrangements for the placing of adults with shared lives carers, and
(c) supporting and monitoring placements.

5.—(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; and
(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 purpose); and
(ii) in circumstances in which personal care is available if required.

(2) For the purposes of paragraph (1)(b) personal care may be provided by a person other than the person who provides the accommodation.

EXPLANATORY NOTE
(This note is not part of the Regulations)

Section 39 of the Care Act 2014 (“the Act”) makes provision for establishing an adult's ordinary residence. Section 39(1) makes provision about an adult's ordinary residence in a case where an adult is living in accommodation of a specified type.

These Regulations specify and define three types of accommodation for these purposes: care home accommodation, shared lives scheme accommodation and supported living accommodation.

Where an adult has needs for care and support which can be met only by living in accommodation of a specified type and is living in accommodation of a specified type in England, the adult is to be treated (by virtue of section 39(1) of the Act) as ordinarily resident in the area in which the adult was ordinarily resident immediately before the adult began to live in the specified type of accommodation. If the adult was of no settled residence immediately before beginning to live in a specified type of accommodation, the adult is treated as ordinarily resident in the area in which the adult was present at that time.

The place where you live, or main home, which determines which council will assess your needs and potentially fund any care and support you need. If you have more than one home, councils follow guidance from the Government to help them decide which one is your main home, and which council should fund your care.

https://www.gov.uk/government/publications/ordinary-residence-anonymised-determinations-2020 provides anonymised summaries of Secretary of State determinations of ordinary residence in 2020