Ordinary residence is a key concept in determining which local authority has a duty to assess and meet the care and/ or support needs of an individual under Parts 3, 4 and 6 of the Social Services and Well-being (Wales) Act 2014 (SSWA 2014).
Determining which local authority has a duty to assess
Section 19 requires that where an adult may have needs for care and support the local authority must assess whether the adult does have such needs, and if so, what those needs are. This duty applies to any adult who is ordinarily resident in the authority’s area and to any other adult who is within the authority’s area.
Section 21 makes similar requirements in respect of children.
Section 24 requires that where a carer may have needs for support the local authority must assess whether the carer does have such needs (or is likely to do so in the future), and if so, what those needs are (or are likely to be). This duty applies to any carer who is providing or is likely to provide care for an adult or disabled child who is ordinarily resident in the authority’s area, or for any other adult or disabled child who is within the authority’s area.
Determining which local authority has a duty to meet needs
Where the care and support needs of an adult meet the eligibility criteria (or the local authority considers it necessary to meet those needs in order to protect the adult from abuse or neglect or a risk of abuse or neglect), section 35 requires local authorities to meet those needs where the adult is ordinarily resident in the local authority’s area or is of no settled residence and within the authority’s area.
Where the support needs of an adult carer meet the eligibility criteria, section 40 requires local authorities to meet those needs where the person cared for by the carer is an adult who is ordinarily resident in the local authority’s area, or is of no settled residence within the authority’s area, or if the cared for person is a disabled child within the local authority’s area. Section 42 makes similar provision in relation to meeting the support needs of a child carer.
Ordinary residence is not a condition of the duty to meet the care and support needs of a child. Section 37 requires only that the child is within the local authority’s area and that their needs meet the eligibility criteria or the local authority considers it necessary to meet their needs in order to protect the child from abuse, neglect or other harm (or the risk of abuse, neglect or other harm).
Looked after children – recovering of costs from another local authority
Under section 76 of the SSWA 2014 (accommodation for children without parents or who are lost or abandoned etc.) a local authority is responsible for providing accommodation for any child within its area who meets the criteria in section 76(1). However, where a local authority provides accommodation under this section for a child who was (immediately before it began to look after the child) ordinarily resident within the area of another local authority, it may recover from that other local authority any reasonable expenses incurred by it in providing the accommodation and maintaining the child (see section 193 of the SSWA 2014).
Section 194(6) provides that in determining the ordinary residence of a child for the purposes of the SSWA 2014, the child’s residence in the following places is to be disregarded:
• a school or other institution
• a place in which the child is placed in accordance with the requirements of a supervision order under the Children Act 1989 or in accordance with the requirements of a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008
• accommodation provided by or on behalf of a local authority in Wales (or a local authority in England).
This means that where a local authority is providing accommodation for a child under section 76 and is seeking to recover the costs of providing that accommodation from the local authority in whose area the child was ordinarily resident immediately before it began to look after the child, the question of where the child was ordinarily resident is to be determined without regard to their actual place of residence at that time, if this is one of the places listed in section 194(6).
Children subject to care orders – designated authority
Where a looked after child is the subject of a care order, the local authority responsible for providing accommodation for the child will be the authority which is designated by the court at the time the care order was made. The designated local authority is the authority within whose area the child is ordinarily resident or, where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made (see section 31(8) of the Children Act 1989).
Section 105(6) of the Children Act 1989 will apply where there is any question of where a child was ordinarily resident for the purpose of deciding which authority is the designated local authority under section 31(8). Section 105(6) of the 1989 Act makes similar provision to that contained in section 194(6) of the SSWA 2014 , such that the child’s residence in specific places is disregarded when determining the child’s ordinary residence for this purpose.
“Deemed” ordinary residence - adults
Section 194(1) deals with where an adult is to be treated as ordinarily resident, if the local authority which is responsible for meeting their needs for care and support makes arrangements for the adult to live in accommodation of a particular type. As a consequence of these arrangements, the adult may move to another area. In this situation, the effect of this provision is that the adult will be treated, for the purposes of the SSWA 2014, as being ordinarily resident in the area of the local authority which made the arrangements (and not in the area to which they move).
Section 194(2) contains a power to make regulations on the types of accommodation to which this provision applies. The Care and Support (Ordinary Residence) (Specified Accommodation) (Wales) Regulations 2015 specify that section 194(1) will apply to care home accommodation. These provisions cover adults with care and support needs who are living in such accommodation in Wales.
Cross border placements
Where arrangements are made for the adult to be accommodated in England, Scotland or Northern Ireland, the provisions in Schedule 1 to the Care Act 2014 will apply. Guidance on cross border placements and the application of Schedule 1 is contained in Annex 2 of the Practice Guidance on cross border placements that has been prepared by the Social Care Institute for Excellence (SCIE)
The provisions in Part 11 of the SSWA 2014 on dispute resolution cover disputes between local authorities about ordinary residence, portability of care and support and provider failure under the 2014 Act. They also cover disputes about ordinary residence under Section 117 of the Mental Health Act 1983.
Section 195 makes provision for determining disputes between local authorities about ordinary residence for the purposes of the SSWA 2014, or between a sending and a receiving authority about the application of section 56 of the SSWA 2014 Act (portability of care and support). These provisions cover ordinary residence and disputes about ordinary residence and the portability of care and support between local authorities in Wales only. Section 195(2) contains a power to make regulations governing the way such disputes are handled.
The Care and Support (Disputes about Ordinary Residence etc.) (Wales) Regulations 2015 specify the procedures which local authorities must follow in handling disputes about ordinary residence and portability of care and support.
Section 189(8) (on provider failure) provides that any dispute about the application of section 189 is to be determined under section 195 as if it were a dispute of the type mentioned in section 195(1). The regulations under section 195(2) therefore also apply to disputes about co-operation and about costs incurred under the temporary duty.
Section 117(4) of the Mental Health Act 1983 (as inserted by section 75 of the Care Act 2014) provides that where there is a dispute about where a person was ordinarily resident for the purpose of section 117(3), and the dispute is between local social services authorities in Wales, section 195 of the SSWA 2014 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of the SSWA 2014. If the dispute is between a local social services authority in England and a local social services authority in Wales, it is to be determined by the Secretary of State or the Welsh Ministers. The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which of them is to determine a dispute under section 117(4)(c).
Code of practice
The regulations and the code of practice under Part 11 replace the statutory guidance on ordinary residence issued in 1993 (WOC 41/93 / LASS 5/133/10).
The code of practice contains guidance on how to determine the ordinary residence of a person.