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23 May 2013
Sarah Vibert, head of development and policy, Epilepsy Society

Stop ordinary residence disputes becoming "business as usual"

The human impact of ordinary residence disputes – disagreements between local authorities over the funding of an individual’s social care – is at the heart of our long-standing campaign to change the rules. These disputes are a national problem, but the extent to which the Care Bill, introduced into Parliament on 9 May, will solve them is debatable.

Sarah VibertLike the VODG, Epilepsy Society recognises that while in theory, ordinary residence guidance clarifies which council funds someone’s social care once they move out of their original area, the reality is very different.

An individual’s ordinary residence is usually in his or her original (or “first”) authority, so if a council places someone in residential care out of the local authority into a new (“second) area, it remains financially responsible. The VODG today publishes a new briefing, Ordinary residence, extraordinary mess (PDF, 357Kb), which outlines how disputes arise when someone decides to move from residential care in the second local authority into supported accommodation within the same area. The first authority argues that it is no longer responsible for funding, but the second authority (where the person actually lives) argues against funding someone not originally from the area. These disputes can drag on for many months.

Disabled people and their families, aware of the barriers involved, often decide not to move home, even when their personal circumstances would be improved as a result.  This is in direct contravention with the values of choice and control that the Care Bill seeks to promote.  In practice it can mean that individuals remain in residential care when they would like to move into more independent care settings.

The VODG briefing highlights the huge disruption caused by ordinary residence dilemmas and underlines the potential role of the Care Bill as a rare chance to resolve the chaos caused by ordinary residence disputes. We need action; local authorities exploit such disputes to avoid or delay funding for someone’s care and the climate of cuts is likely to make this problem worse.

Today’s VODG briefing, Ordinary residence, extraordinary mess, includes the story of Lucy who is supported by another VODG member: "Lucy, who we support and who lives in residential care in London, wants to move to supported living on the south coast. She has profound and multiple physical and learning disabilities so we, with her advocates, have supported her to explore this option and make an informed choice. We’re trying to locate a suitable property and firm up her 24-hour care package but we’re very conscious that she will fall foul of ordinary residence rules. When the time comes to approach the new ‘host authority’, we don’t know how much of a challenge setting up her care package will be in terms of who will assume responsibility for her care. In principle, it is all the same money - public sector funding - but when Lucy transfers from one area to another, she runs the risk of the two authorities disputing her care. A move is going to be challenging enough for Lucy who cannot live without 24 hour support so can only move once support arrangements are in place."

The other impact of ordinary residence disputes is the financial impact on third sector providers.

Charities such as Epilepsy Society are often caught in the middle of disputes between local authorities about who is responsible for funding an individual’s care and support needs. Department of Health Guidance (2011, updated this year) aims to prevent disputes by clarifying the rules around ordinary residence. In practice however, local authorities often question this guidance in an attempt to avoid or delay funding care. This leads to a situation where a provider is continuing to deliver care services and then chasing local authorities for the fees that are owed.

The VODG’s 2007 report No Place Like Home highlighted the confusion and distress caused by ordinary residence disputes, and a 2010 a follow-up, Not in My Backyard (both downloadable from the 'Current Priorities' webpage), found that little had changed. Epilepsy Society chief executive Graham Faulkner has blogged on the topic here before.

We estimate that in the last three years, Epilepsy Society has covered gaps in fees totalling £350,000.  Furthermore, the staff time involved in chasing fees over the same period has amounted to approximate 340 days across all departments including senior and service managers, finance and administrative staff.

This is time and money that could be better spent on our core mission of supporting people affected by epilepsy. Although Epilepsy Society has always been repaid fees in full when the charity has covered a gap, repayment has sometimes taken over twelve months to resolve.  Over the last year there has been around one new case per month where a local authority disputes responsibility for paying care fees. Disputes have almost become “business as usual”.

Of course, providers do have the option of going to the Secretary of State to force a decision and this was the course of action Epilepsy Society took in 2010 in relation to two of our clients moving out of residential care.  Ironically, this determination has increased the number of disputes we find ourselves caught up in.

Why? Previously, many of the original authorities continued to fund care for individuals that had moved out of residential care into supported living.  Legally they can choose to do so, although existing guidance states that the new authority has the duty to pay.  The publicity around the Secretary of State’s determination has meant that original authorities that have previously continued to fund care are beginning to dispute paying fees. As mentioned earlier, in a climate of local authority funding cuts, this is perhaps unsurprising.

This is why we are calling on the DH to use this once in a generation opportunity presented by the Care Bill, to get the rules around ordinary residence right once and for all. Although there is little appetite to change the underlying principles of ordinary residence being used as a basis for funding care needs, there are some promising signs in the Bill that the current process may be improved. For example, the Bill paves the way for extending the ordinary residence deeming to care settings beyond residential care, and strengthens the duty on local authorities to cooperate with providers and with each other to prevent delays in funding.

It is vital however that the Department works closely with providers, particularly those in the third sector, in drafting detailed regulations that accompany the Bill. We want to see further clarity around: recovery of costs between local authorities following a dispute, what types of accommodation are covered by the new legislation and how ordinary residence is defined.

We want to understand how local authorities will be held to account so that providers are not left to play arbiter in the middle of disputes. We want a resolution that is fair; on local authorities, on charity providers, but most of all for disabled people who want choice and control about where they live.

Download Ordinary residence report - Ordinary residence, extraordinary mess (PDF, 357Kb)