If a person is severely mentally incapacitated, at the time of his or her assessment, and the assessing authority decides the person should be placed in care elsewhere as part of meeting his or her needs, for instance because s/he has friends and relatives there who offer the best hope of bringing back memories for the person or in order to access specialist services or simply an available bed, then the ‘deeming’ provisions of the Care Act (s.39) will take effect, and continue the original authority’s liability for so long as s/he remains in one of the specified types of accommodation (and the need for the specified accommodation is stated in the Care Plan). Even if one takes the view that s/he could not be said to be voluntarily in the original authority at the time of the need arising, because s/he has already lost capacity, then the original authority was still responsible for placing the client, on the basis that the needs are urgent (s.19(3)) and regardless of the client’s ordinary residence at the time.
If a relative had taken it upon him or herself to move a person and make private arrangements, without him/her being of sufficient capacity to consent, we think it strains the meaning of voluntariness beyond judicial willingness, to suggest that in that situation, the client’s place of ordinary residence moves with their body and their suitcase.
In our view, that is the most obvious situation where the epithet ‘of no settled residence’ applies best – where the person has not consented, because they can’t, but where they have been moved nevertheless. We do not think it is practicable to trace back the ordinary residence of the individual to the last place in which the person actively chose to be, whilst they still had sufficient mental capacity. And in the case of learning disabled people, they may never have acquired sufficient capacity to make a choice, so the place where they happen to be must be the most sensible means for identifying liable authorities, should public sector help be needed again.
This approach is now reinforced by the latest revision of the Care Act statutory guidance. Following the judgement in R (on the application of Cornwall Council) Secretary of State & Ors [2015] UKSC46 the guidance now accepts that the ordinary residence of adults who lack capacity should be determined in a similar way to that of capacitated adults, despite the lack of voluntariness:
“19.32 Therefore with regard to establishing the ordinary residence of adults who lack capacity, local authorities should adopt the Shah approach, but place no regard to the fact that the adult, by reason of their lack of capacity cannot be expected to be living there voluntarily. This involves considering all the facts, such as the place of the person’s physical presence, their purpose for living there, the person’s connection with the area, their duration of residence there and the person’s views, wishes and feelings (insofar as these are ascertainable and relevant) to establish whether the purpose of the residence has a sufficient degree of continuity to be described as settled, whether of long or short duration.”
Since s.18 Care Act places a duty on local authorities to meet the needs of both adults who are ordinarily resident in their area and those who are “present in its area but of no settled” residence, it is not necessary for most practical purposes to actually decide whether an incapacitated adult has achieved ordinary residence in the new area where they have been moved by their relative/friend or whether they are merely of ‘no settled residence’. In either event, it is the local authority in the new area which is responsible.
The only situation in which we would suggest that the law might be different is when there has been something ‘shady’ about the circumstances of the move from one place to another. For instance, if the local authority doing the exporting has procured the move by paying rent for someone in another authority, or has misled the person as to their entitlement under the law if they were to stay, or if they were to go elsewhere, or where the relative doing the moving has been known to present a risk to the welfare of the client, but the original authority has just stood back, let the client be ‘kidnapped’ and not taken any safeguarding steps to get the person returned to its jurisdiction.
In all of the above (ordinary) situations, when the person needs healthcare, the CCG for the area in which they are registered with a GP is liable, regardless of where his/her place of ordinary residence is. The only exception is where somewhere is in receipt of Continuing Health Care (CHC) in which case the placing CCG remains liable, even if they change GP (Care Act guidance Annex H5).