s.40 Care Act provides a mechanism for resolving disputes between local authorities regarding ordinary residence.
Where there is uncertainty, LAs “should always consider each case on its own merits” (Care Act Guidance 19.13 based on public law principles)
Disputes over OR MUST not delay the provision of care and support. LAs should meet needs first and determine OR later (Guidance 19.11, Disputes between Local Authorities reg. 2)
Whichever LA is meeting the needs on the date a dispute arises (or LA where adult is living or present) must do so during the dispute and becomes the ‘Lead Authority’ (reg. 2)
LAs must try to resolve between them and provide information reasonably requested by the lead authority (Disputes between Local Authorities reg. 3)
After 4 months must refer to Secretary of State to decide (reg. 3(7))
Although such cases should be referred within the normal time frame, the DoH is currently intending to stay resolution of cases which raise similar issues to those currently before the supreme court in the Cornwall case i.e. “an issue as to whether a person lacks capacity is raised or disputed between the parties, and the determination requires application of either the Vale or Cornwall approach.” Note of the Department’s position 2nd July 2015
s.41 Care Act provides a mechanism for whichever LA met the needs during the dispute to get paid back once it is resolved (if someone else should have been paying)