What is the ordinary residence of people re-settled out of long stay hospitals and whose care has been paid for by their Preserved Rights levels of benefit ever since?

In law, those who were on preserved rights levels of benefits have always been regarded as having made their own contractual arrangements privately with the homes who took them on, even though usually it would have been facilitated by a social worker prior to 1993. Since it was a contract for necessaries, it did not matter that the contract was made by a party with a mental impairment or incapacity, because contracts made by mentally incapacitated people for accommodation, food etc, are given effect despite the incapacity making the contract unenforceable. Ordinary residence cases existed prior to the wholesale shipment out of people into the community in 1993, but there has not been any case about the relevance of their voluntariness or capacity to the question of residence since then, that we are aware of.

We think that a court would find that either people had capacity to have chosen where to be cared for, and thus were ordinarily resident there when an authority has to take over care management; or that they were of no settled residence by reason of severe incapacity. That would lead to the same result – the authority on the spot would be liable when LA management was first called for.