In the most recent of its rolling series of updates to the Care Act Statutory Guidance, the Department of Health has finally updated Chapter 19 to take account of the Cornwall case, and to outline how the ordinary residence of a person with impaired capacity is to be determined.
I reproduce the material extracts below:
“Cases where a person lacks the capacity to decide where to live
19.23 All issues relating to mental capacity should be decided with reference to the Mental Capacity Act 2005 (the 2005 Act) […]. Under this Act, it must be assumed that adults have capacity to make their own decisions, including decisions relating to their accommodation and care, unless it is established to the contrary.
19.24 The test for capacity is specific to each decision at the time it needs to be made, and a person may have capacity to make some decisions but not others. It is not necessary for a person to understand local authority funding arrangements to have capacity to decide where they want to live.
19.25 If it can be shown that a person lacks capacity to make a particular decision, the 2005 Act makes clear how decisions should be made for that person. For example, if a person lacks capacity to decide where to live, a best interests’ decision about their accommodation should be made under the 2005 Act. Under section 1(5) of the 2005 Act, any act done, or decision made (which would include a decision relating to where a person without capacity should live), must be done or made in the best interests of the person who lacks capacity. Section 4 of the 2005 Act sets out how to work out the best interests of a person who lacks capacity and provides a checklist of factors for this purpose.
19.26 Where a person lacks the capacity to decide where to live and uncertainties arise about their place of ordinary residence, direct application of the test in Shah will not assist since the Shah test requires the voluntary adoption of a place.
19.27 The Supreme Court judgment in Cornwall made clear that the essential criterion in the language of the statute 61 ‘is the residence of the subject and the nature of that residence’.
19.28 At paragraph 51, the judgment says in relation to the Secretary of State’s argument that the adult’s OR must be taken to be that of his parents as follows:
‘There might be force in these approaches from a policy point of view, since they would reflect the importance of the link between the responsible authority and those in practice representing the interests of the individual concerned. They are however impossible to reconcile with the language of the statute, under which it is the residence of the subject, and the nature of that residence, which provide the essential criterion…..’
19.29 At paragraph 47, the judgment refers to the attributes of the residence objectively viewed.
19.30 At paragraph 49, the judgment refers to an: assessment of the duration and quality of actual residence.
19.31 At paragraphs 47 and 52, the judgment refers to residence being ‘sufficiently settled’.
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.
19.33 Physical presence provides a starting point for considering ordinary residence but does not necessarily equate to ordinary residence – a person could be physically present in an area but of no settled residence. This is covered in paragraphs 19.23 to 19.25 of the Care Act statutory guidance.
19.34 In certain situations, ordinary residence could be deemed to be in a different area to that in which a person is physically present. This is covered in paragraphs 19.44 to 19.59 of the Care Act statutory guidance and in the section below on looked after children transitioning to adult social care services.
19.35 Other situations such as temporary absences and people having more than one home are covered in paragraphs 19.70 to 19.74 of the Care Act statutory guidance.
19.36 The issue of duration is covered in paragraph 19.15 of the Care Act statutory guidance.”