The New ADASS Protocol

Saturday 8 January 2011

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Will your local authority ratify the Protocol? The time for decisions is nigh!

On the 2ndJuly 2010, the National Executive Council of the Association of Directors of Adult Social Services (“ADASS”) approved a National Protocol on Ordinary Residence Arrangements for People Moving Between Local Authority Areas(“the Protocol”) (together with FAQand an Advice Note). Through ADASS Regional Chairs, all local authorities have been invited to sign up to the Protocol by the end of January 2011. The Protocol will come into effect on the 1stApril 2011, as far as concerns the signatories.

Background

As readers will be aware, for many years local social services authorities have, from time to time, disputed over responsibility for adults with care needs.

Many of these disputes turn on the ordinary residence of the care user, ordinary residence being critical to the existence of many care duties.

Section 32 of the National Assistance Act 1948 (“the 1948 Act”) (reference to the Secretary of State for a determination) provides a cheap and, these days, relatively speedy way of resolving disputes about ordinary residence under the 1948 Act.

The Department of Health published updated best practice guidance on ordinary residence on the 5thMarch 2010: Ordinary Residence: Guidance on the identification of the ordinary residence of people in need of community care services, England(“the DoH guidance”) along with 3 sets of directionsand further guidance on cross border arrangements.

The DOH guidance helpfully explains ordinary residence and the likely approach of the Secretary of State under section 32 of the 1948 Act.

The DoH guidance does not, however, provide any steer to local authorities as to how best to mitigate the budgetary side-effects of the government’s policy on personalised services and, in particular, its policy that, as far as is possible and appropriate, persons in need of care services should have the opportunity of living in supported housing arrangements in the community, where they have their own tenancy, and not in residential care.

This policy has resulted in many care homes de-registering themselves as care homes and providing supported housing and it has also resulted in many local authorities reviewing the needs of care home residents and making arrangements to support those residents moving into supported housing arrangements, usually in the same area.

As readers will be aware, when local authority A places X in a care home in the area of local authority B, under section 21 of the 1948 Act, X is statutorily deemed for the purposes of the 1948 Act to remain ordinarily resident in the area of local authority A, by virtue of section 24(5) of the 1948 Act. However, should the care home placement end, for whatever reason, and should X continue to reside in the area of local authority B otherwise than in a care home, then the statutory deeming provision disappears and as soon as X becomes ordinarily resident in the area of local authority B, local authority B becomes responsible for the provision of care services to X, for example, under section 29 of the 1948 Act.

Because of this, the personalisationprogrammehas resulted in many changes of responsibility for adults, often with relatively high care needs. Local authorities host to specialist residential facilities for relatively young adults have been particularly affected. The budgetary consequences for many local authorities are difficult to estimate with precision, but are potentially serious.

The DoH guidance simply explains and notes these consequences. The view seems to be that it is all a case of “swings and roundabouts” and that any major distortions will be dealt with in due course through revenue support.

That is as may be. The Protocol is an attempt directly to mitigate some of the budgetary consequences of personalization: where residents of specialist care facilities move into local shared supported housing arrangements.

The Protocol

In outline, the way that the Protocol will work, as between ratifying authorities, and in cases where it applies, is as follows:

Local authority A should notify and enter into active discussion with local authority B as soon as possible when a change in ordinary residence status is anticipated following a re-assessment of needs;

Local authority A and B should work collaboratively together in the interests of X and try to agree the date when X’s ordinary residence changed to that of local authority B;

Local authority A will retain management responsibility for up to 12 weeks from the date when X’s ordinary residence changed, using its powers under section 29 of the 1948 Act;

Local authority A will retain financial responsibility for 18 months from the date when X’s ordinary residence changed, capped at the maximum weekly financial commitment agreed at a 12-week review, again using its powers under section 29 of the 1948 Act;

Local authority B will attend a 6 and 12-week review, complete a community care assessment and support plan, take over lead responsibility for care management following the 12-week review (but local authority A will continue to participate), commission all services agreed at the 12-week review and any additional services identified as being necessary to provide at subsequent reviews and invoice local authority A (up to the level of the cap described above);

If X’s placement breaks down within the first 12 weeks so that X returns to live in care home accommodation, local authority A continues to be responsible. However, if the placement breaks down after 12 weeks, then local authority B becomes responsible.

It should be noted, however, that the Protocol is intended to have limited effect. It does not apply to people routinely moving from one local authority area to independent accommodation in another area or to people moving from institutional care to independent i.e. non-shared community based accommodation e.g. privately owned or rented accommodation within the same area. Its scope is limited to cases where local authority B is host to specialist or regional care home accommodation that de-registers and/or provides “move on” tenancy-based shared accommodation for their residents in the same area.

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