TUCKED away on the Department of Health website, and there only because of a recent freedom of information request by Age Concern, are the determinations made by the department where local authorities are in dispute as to who is responsible for paying for a care home for ill and disabled people.
Recent cases and guidance (not to mention Panorama programmes) have drawn attention to people denied care by the NHS because of a refusal by health bodies to accept that they have a duty to provide free services. But in cases where it is truly the obligation of social services to meet needs there is often a battle to decide which one should pick up the bill. And with care packages for those with the greatest disabilities sometimes reaching £250,000 a year, accepting responsibility can have a real impact on a social services budget.
The problem is that responsibility depends on a badly defined concept called “ordinary residence”. A House of Lords case in the 1980s said in effect that a person’s ordinary residence depends, at least in part, on where that person has voluntarily decided to live as a settled aspect of their life. However, the court also decided that each case should be decided on its own facts and merits.
There is also law and guidance which states that if a local authority places a person in a home out of their area then the placing authority retains responsibility to fund the placement.
Advertisement
But there are cases where it is not that simple. If a person is able to fund his or her own care and is advised by a council about an “out of borough” home, which local authority is responsible for funding the placement when the person runs out of money? If a person has been treated in an NHS facility away from his or her home, are they then ordinarily resident in that area when they have recovered sufficiently to need only social care? How do you decide the ordinary residence of a person who has no capacity because of learning difficulties to decide voluntarily where they wish to live? The National Assistance Act 1948 contains a sensible mechanism whereby the secretary of state decides any disputes to avoid the need for authorities to slog it out in court. There is also guidance, usually followed, which states that one of the authorities should agree to pay the bill pending an outcome — thus guaranteeing that a person’s needs are met.
Despite this, the number of determinations on the website suggest that the time has come for a more straightforward and definite test to determine the correct authority (eg, the NHS decides the issue for its services simply by reference to where a person is registered with a GP). Without reform it is likely that the secretary of state will be called on more often by cash-strapped councils to sort things out.
Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers
E-mail: s.cragg@doughtystreet.co.uk