LocalGovernmentLawyer Adult Social Care 2017 35 order. Placing evidence of these actions before the court will assist in obtaining a possession order promptly. Patients with NRPF Where P, as a result of his immigration status, is not eligible for care and support under the CA, or homelessness or housing assistance under the Housing Act 1996, or welfare benefits generally, the question of where to safely discharge him becomes an acute one³. Paragraph 1 of Schedule 3 of the Nationality Immigration and Asylum Act 2002 (“NIAA”) precludes social care from meeting needs for care and support under the CA to certain categories of persons. This includes EEA nationals and those who have no leave to enter or remain. However, social care must provide assistance if, and to the extent that it is necessary for the purpose of avoiding a breach of P’s human or Convention or Community Treaties rights. In order to determine whether this applies social care must undertake a human or community treaties rights assessment (“HRA”). Generally, where the assessment is ongoing and subject to P not being able to access support from family/friends/charities/religious organizations, social care has the power to provide interim support. This therefore provides one answer to the question of where to safely discharge P – into the care of social care. Of course, if social care has, while P is on the ward, undertaken a lawful HRA assessment and determined that there is no legal or practical impediment to return to country of origin, and it is P’s choice to nevertheless remain in the UK, social care can refuse to provide assistance. In these difficult situations the trust will likely need to signpost P, hopefully with the assistance of their pathway homeless team⁴, to charities or other organizations that may be able to help. Patients with no fixed abode The main issue in relation to patients with no fixed abode (NFA) is which social care authority is responsible for meeting their needs for care and support? The reluctance of the potentially responsible local authority (“LA”) to accept responsibility can have a knock on effect on the completion of assessments leading to DToC. Generally, as a result of section 18(1) CA, the LA in which the adult is ordinarily resident (“OR”) or is present in its area but of no settled residence is responsible for meeting P’s needs for care and support. However, it is recognized that this would place an unfair burden on those LAs in which hospitals are located and section 39(5) CA provides that the responsible LA is that in which P was OR immediately before he was admitted to hospital or was present in if he had no settled residence. The Secretary of State for Health (who determines OR disputes) is extraordinarily reluctant to find that P is of no settled residence. The courts have indicated that this is a finding of last resort that should not apply except in extreme and clear circumstances (R(Sunderland) v South Tyneside [2012] EWCA Civ 1232). As such LAs should be able to readily agree that P is OR in an area applying, where P has capacity, R v Barnet ex p Shah [1983] 2 AC 309 and Mohamed v Hammersmith and Fulham [2002] 1 AC 547. P is likely to be OR in the area in which he sleeps (a doorway can constitute ‘shelter’), eats (especially if he regularly returns to a specific drop in centre for meals), spends the vast majority of his day, returns to a specific hostel to shower or pick up his mail, and went to that area with a settled intention (e.g. to be closer to members of his community). There are similar practical, pragmatic solutions from a legal perspective to help in reducing DToC where one is awaiting a CoP ruling or in dispute over CHC. While these may not assist in the majority of cases where the underlying problem is simply a resources issue of, for example, a lack of occupational therapists to assess P’s home, or of a social worker to undertake the CA assessment or of a suitable residential placement, they are likely to assist in those intractable cases that take up a disproportionate amount of your front line professionals’ time but also contribute disproportionally to the number of delayed days in DToC⁵. Peggy Etiebet is a barrister at Cornerstone Barristers. She can be contacted through clerk Elliot Langdorf on 020 7242 4986 or email elliotl@cornerstonebarristers.com www.cornerstonebarristers.com ¹ It is worth noting that of the 195,286 delayed days in December 2016 56% were attributable to the NHS, 8% to the NHS and social care, and 36% to social care – while social care undoubtedly has focused work to do on this front reducing DToC will need an integrated approach by health and social care. ² Many thanks to LondonADASS, who, in partnership with NHSE, invited me to speak at a workshop on tackling the wicked issues underpinning delayed transfers of care. Views in this article are mine alone. ³ NHS England’s defines a DToC from acute or non-acute (including community and mental health) care as occurring when a patient is ready to depart from such care and is still occupying a bed. A patient is ready for transfer when: (a) clinical decision has been made that patient is ready for transfer; and (b) a multi- disciplinary team decision has been made that patient is ready for transfer; and (c) the patient is safe to discharge/transfer. ⁴ Should they have one – an example is the excellent Kings Health Partners Pathway Homeless Team at Guys and St Thomas’, Kings College and South London and Maudsley. ⁵ Adriano Guedes, whose case was reported extensively in the media, spent 29 months at the ‘Short Term Medical Unit’ at James Paget Hospital despite having no medical need to be there. While social care [providers] undoubtedly have work to do on this front, reducing Delayed Transfers of Care will need an integrated approach by health and social care.