Can authorities agree between themselves the point at which people acquire and lose ordinary residence when they have moved from one place to another?

The tendency of authorities to draw up such agreements between themselves, to streamline the passing over of responsibility for large numbers of people who may be regularly being moved from one authority to another, has never been scrutinised by the courts.

However it has always been our firm view that such arrangements must be unlawful. After all, they purport to make changes in the legal status of people, usually without their knowledge, in a situation where that legal status could affect

which authority is liable for arranging and funding care

which authority’s approach to applying the national eligibility criteria applies (e.g. view of “significant impact”)

which authority’s charging policy would apply

The question of ordinary residence is a question of law, as applied to the facts, not a question of administrative convenience for resolving between authorities. There is no legal power to do it, and it is thought that any such protocols would be void from the outset.

In general, an adult’s ordinary residence will change when they move voluntarily and for settled purposes. There is no minimum period of time for which someone must have lived (or intend to live) in an area to become ordinarily resident there. It is the purpose which matters.

It is welcome that the Care Act explicitly clarifies the law on continuity.

Local authorities must provide information to anyone considering moving into their area (s.37 and Guidance 20.7-20.9) but should guard against influencing the final decision (Guidance 20.8)

Local authorities must assess adults (and their carers) who have a genuine intention to move into their area in advance of their move (s. 37(6) and Guidance 20.25-20.32) and provide advocacy if needed (s. 67 and Guidance 20.24)

The new LA is responsible for funding an adult’s care from the day they move, even if they haven’t assessed yet (or completed their assessment) (s. 38 and Guidance 20.31 & 20.41)

Determining OR for those who lack capacity and/or in situations involving deeming is more complex. See topic and other question answers for further information.