When somebody is due to come out of hospital, s24(6) National Assistance Act (NAA) provides that for the purposes of accommodation needs under that Act, a person who is a patient in an NHS hospital shall be deemed to be ordinarily resident in the area in which he was ordinarily resident, before he was admitted to hospital. This means that the authority where the person came from before admission, remains liable for arranging whatever social and basic nursing care that s/he needs, but it does not determine which HA becomes liable for the ongoing medical input.
In our view, the relevant NHS regulations The National Health Service (Functions of Health Authorities and Administration Arrangements) Regulations 1996 on determining district of residence for healthcare services are not determinative of the issues which might arise, when an ongoing package of care of a mixed nature is likely to be needed. The guidance on continuing care and free nursing care makes it plain that the rules of residency for health services will shortly be based on wherever one is registered with a GP, which will make the situation clear.
For now, however, the problems are as follows: when the person is awaiting discharge, the commissioning authority will not know where it may be possible to place the client; they will not necessarily know his or her own wishes, nor whether s/he needs residential or nursing care, nor what level of free nursing care the person qualifies for, nor whether they meet the continuing care criteria of any particular health authority.
The National Health Service (Functions of Health Authorities and Administration Arrangements) Regulations 1996 state that a person is ‘usually resident’ for the purposes of defining the liable HA for NHS functions (including s3 National Health Service Act 1977 continuing care specialist nursing services) by reference to either the address which the person gives as being the one where he ‘usually resides’, or the place which was his most recent address, or in default of these situations, the area in which he ‘is present’.
Therefore we think that pending a move from the hospital, it is the HA which is the HA for the area of the person’s last home which is liable, at least in the first instance, for continuing medical input, because the last ‘usual’ address determines responsibility in most cases. If that HA says it will pay, then that is the one to concentrate on. That HA cannot say, in law, that another HA ‘should’ contribute for some reason or another, because the law imposes a duty on the ‘relevant’ authority under the regulations, to pay, (assuming s/he meets their criteria) and not a discretion. Even if the person had been living in that HA, only because they had been placed there by a separate local authority in an out of that county placement, in order to meet the person’s social care needs, it is not a valid excuse, in law, for that HA to say that the continuing deemed ordinary residence of this man in another local authority’s area, is determinative of where he is usually resident for the purposes of NHS functions. If s/he wants to carry on living in the area in which s/he had been living, it will be that HA which is, and which will be, responsible for free nursing needs and for continuing care if the person qualifies.
However, the person may want to move elsewhere, and may well have capacity to decide. In terms of a social care placement in a residential or nursing home placement, s/he can force the authority in which s/he counts as ordinarily resident for NAA purposes, to place him elsewhere, subject to suitability, availability and the usual cost for accommodating a person with that profile and level of needs, and that authority will remain liable under s24(5) NAA for so long as the client needs a s21/section 26 NAA placement. Thus that new placement in another area will become the client’s ‘usual’ address. We think that the client cannot make that Health Authority liable in law for free nursing care or continuing care, until s/he is actually resident there.
In pre-free nursing care cases, we think that the law on the specific point was that the HA of original pre-hospital residence should pay for the first 6 weeks or so, wherever the placement is made, to see if it works, and from then on in, the HA on the spot should become liable, as it will then have become the authority of usual residence for this man. This is a principle which the Courts have adopted in relation to the liable authority for the s117 Mental Health Act function, and it makes sense for it to be consistent here. Support for this view is obtained from the Secretary of State’s guidance on ordinary residence in LAC 93(7) because it covers some forms of health services, too. The guidance says at para 20 (regarding identifying the HA responsible for providing health services to residents in homes), that the HA of usual residence is liable for community health care services. It says that if the move to the residential care or nursing home is permanent then the HA for the Home in question, would be the HA of usual residence, for the ongoing services. It recommends that the liaison should be with the new HA if the placement has to be made out of the previous area.
Again, prior to free nursing care coming in, and before continuing care was sorted out by the guidance of the DoH and everything was subject to negotiation, in the light of the Coughlan case about continuing care, if a person was entitled to some direct contractual NHS input towards the cost of the package in the chosen home, the LA might not have been able to conclude any specific arrangement for care unless it had agreement from the relevant HA for continuing care funding for the specialist nursing element.
This will no longer be a problem because the new guidance distinguishes between fully paid continuing care, in which the whole of the person’s needs are met by the NHS, subject to it being needed for more than 6 weeks, so there will not be split packages which are dependent on discretionary decisions of the HA. All there will be is packages where the client is entitled to free nursing care so long as the use of the Registered Nurse Care tool has resulted in a finding that the person needs that level of care.
In cases where a placement is to be made in residential care, there will be no element of free nursing care. If the placement is particularly expensive (say because of challenging behaviour of the client) the HA in that area may have to be asked for a s28A NHSA payment.