On 15 April, the DH published Best Practice Guidance for local authorities in regard to the identification of “ordinary residence” of people in need of community care services. However, this guidance may also be extremely useful for health bodies who are dealing with NHS Continuing Healthcare (NHS CHC) and section 117 Mental Health Act after-care queries. It may also be useful when considering the exercise of delegated health related functions made under section 75 of the National Health Service Act 2006 (partnership arrangements).
The guidance applies to determination of ordinary residence for the purposes of the National Assistance Act 1948 and certain other legislation. It also supersedes the previous LAC(93)7 guidance and the guidance issued on 5 March 2010 which are now revoked.
The guidance is a 70 page document which gives helpful examples of how the new guidance should be interpreted and applies the guidance to various situations in which a person’s ordinary residence may be an issue. Examples included are:
- self funders in residential care (page 26);
- people moving into independent living accommodation who lack mental capacity to decide where to live (page 35);
- NHS Continuing Healthcare (page 39); and
- joint packages of health and community care services (page 41).
At page 40, paragraph 113 the guidance refers to situations where the need for NHS CHC ends, and social care services that may have been previously provided by the NHS as part of the NHS CHC care plan, now require provision by the local authority under Part 3 of the National Assistance Act 1948. In this situation the guidance states at page 40, paragraph 115:
“115 Where a person is accommodated in a care home as part of their package of NHS CHC, it is possible that they may cease to be eligible for NHS CHC, but still need to remain in their care home, or to be provided with Part 3 accommodation elsewhere. In such a case, the effect of the deeming provision in section 24(6) of the 1948 Act would be that the local authority in whose area the person was ordinarily resident immediately before being provided with NHS accommodation would be the authority responsible for funding the person's accommodation under Part 3 of the 1948 Act...”
There is also included in the guidance consideration of the existing case law which may be applied to any relevant situations, as well as consideration of legislation in relation to the Mental Capacity Act 2005 deprivation of liberty safeguards (page 58); and section 117 Mental Health Act 1983 after-care services (page 63).
The guidance explains that “resident” under section 117 of the Mental Health Act 1983 does not have the same meaning as “ordinarily resident” under the National Assistance Act 1948 and paragraph 185 of the guidance explains the difference and cites relevant case law (R v Mental Health Review tribunal Ex p. Hall (1999)) which has determined the differing interpretation.
The guidance has also been updated to set out the changes to the ordinary residence provisions introduced by the Health and Social Care Act 2008.