Hi there,
I’m one of the Mencap information and advice officers and from time to time we hear from families going through a similar experience. I’m sorry to hear that your brother is unhappy in his current home.
Local authorities must follow a given process which is the legal framework set out in the Care Act 2014 for a person who has eligible support needs. The bottom line is your brother’s latest assessment of his needs and how any eligible needs may be met, so this is a good starting point with his social worker. The local authorities will look at where your brother is ‘ordinarily resident’ when they work out which of them has responsibility to fund his social care support.
It’s a good idea to clearly state your brother’s case to both local authorities and the reasons for his wish to move. It’s always good to do this in writing so that you have a paper trail of documented records of correspondence.
You also need to be sure that your brother has the mental capacity to make this decision to move – ie. is he going there voluntarily. There is more information about people’s rights and decision making here: https://www.mencap.org.uk/advice-and-support/mental-capacity-act
The statutory guidance for the Care Act is on this link: https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance
In particular the issue of inter-authority moves and continuity of care is addressed in chapters 19 and 20. It’s good to be familiar with the duties of the local authority so that you can see the procedures they should be following. The local authority will have discretionary powers in exceptional cases.
19.2 Whether the person is ‘ordinarily resident’ in the area of the local authority is a key test in determining where responsibilities lie between local authorities for the funding and provision of care and support.
19.11 The determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the local authority should meet the individual’s needs first, and then resolve the question of ordinary residence subsequently.
19.15 (For a person who has capacity) Local authorities should in particular apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.
20.1 People with care and support needs may decide to move home just like anyone else, such as to be closer to family or to pursue education or employment opportunities, or because they want to live in another area. Where they do decide to move to a new area and as a result their ordinary residence status changes (see chapter 19 on ordinary residence), it is important to ensure that care and support is in place during the move, so the person’s wellbeing is maintained.
20.2 Where the person chooses to live in a different local authority area, the local authority that is currently arranging care and support and the authority to which they are moving must work together to ensure that there is no interruption to the person’s care and support.
20.4 The aim of this process is to ensure that the person with care and support needs will be able to move with the confidence that arrangements to meet their needs will be in place on the day of the move. Local authorities are expected to achieve continuity of care by ensuring that the second authority has completed a needs assessment and developed a care and support plan for the individual prior to the day of the move. It is possible that the second local authority might be unable to complete a needs assessment prior to the day of the move due to the logistics of assessing a person a long distance away or because they want to assess the adult in their new home. If the second authority has not carried out the assessment prior to the move, it must continue to meet the needs and take into account outcomes identified in the adult’s current care and support plan until it has carried out its own assessment.
20.5 The key to ensuring that the adult’s care is continued is through both local authorities working together and that the adult and their carer, if they are continuing to care for the adult, are at the centre of the process.
I hope that sets out more clearly what your brother’s rights are and I hope that he can be supported to move to a place where he will be happier.
Best wishes,
Margaret
