Summary: Ms B complained about the Council’s delay in carrying out assessments of her mother’s needs for care and support and her finances which meant that the Council failed to pay her mother’s care home fees. On the evidence we have seen, there was fault. The Council has agreed to apologise, refund Mrs C and carry out a service improvement.

The complaint

Ms B complains on behalf of her mother, Mrs C, who lives in a care home. Ms B contacted the Council in September 2022 and asked them to carry out the relevant assessments so that the Council could take over the payments. She says there were substantial delays and mistakes in the Council’s actions and Mrs C have not still not been repaid appropriately.

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The Ombudsman’s role and powers

1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
2. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

3. I have discussed the complaint with Ms B. I have considered the information that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

4. The Care Act 2014, the Care and the Support Statutory Guidance 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Assessment, care plan and personal budget

5. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.
6. The Guidance says an assessment should be carried out over an appropriate and reasonable timescale, taking into account the urgency of needs and considering any fluctuation in them. We expect councils should complete assessments in a timescale that is proportionate to the complexity of the issues, and normally within 4-6 weeks. Councils should tell the individual how long their assessment will take and keep them informed about this throughout the process. If it is a particularly complex assessment then the council should tell the person how long is likely to take.

Financial assessment

7. Councils must carry out a financial assessment if they decide to charge for the care and support. They must then give the person a written record of the completed assessment.
8. If a person needs residential care, the council will assess their capital and income. The upper capital limit is currently set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care.
9. Regardless of capital, residents may also have to pay a contribution from their income towards the fees.

Top-up fee

10. When it has been decided that a person’s needs are best met in a care home, the council must ensure that at least one accommodation option is available within the person’s personal budget and it should ensure that there is more than one of those options.
11. However, a person can choose a more expensive care home if a third party or in certain circumstances the resident is willing and able to pay the additional cost. This is known as the top-up fee.

Ordinary residence

12. The local authority’s responsibility for meeting a person’s eligible needs under the Care Act is based on the concept of ordinary residence. 
13. The courts have considered the meaning of ordinary residence and the leading case is that of Shah v London Borough of Barnet (1983). In this case, Lord Scarman stated that: ‘ordinarily resident refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.’
14. 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.
15. The CASS Guidance says: ‘People who self-fund and arrange their own care (self funders) and who choose to move to another area and then find that their funds have depleted can apply to the local authority area that they have moved to in order to have their needs assessed. If it is decided that they have eligible needs for care and support, the person’s ordinary residence will be in the place where they moved to and not the first authority.’

What happened

16. Mrs C has dementia and moved into a care home in Haringey in September 2021. She was previously living in a neighbouring council’s (council K) area and owned a property there. She self-funded the Home’s fees as she had capital (not related to the property) over the £23,250 threshold.
17. Ms B contacted council K in March 2022 and informed them that Mrs C’s capital was going to reach the threshold of £23,250 soon. She provided the information for a financial assessment in June 2022.
18. Council K sent emails to Ms B in September 2022 and said:
• Mrs C was ordinarily resident in Haringey as she chose to live there and privately funded her care. Therefore, Haringey Council was responsible for funding the care home’s fees.
• Council K had carried out a capital depletion calculation and Mrs C became eligible for funding assistance on 28 May 2022.
19. Council K sent an email to Haringey Council on 5 September 2022 and said Mrs C was ordinarily resident in Haringey and she was therefore Haringey’s responsibility. Ms B sent an email to Haringey Council on 8 September 2022 asking the Council to take over the funding as Mrs C’s capital was almost zero. She also asked the Council to carry out a Care Act assessment.
20. Mrs C’s property was sold in November 2022. The property had negative equity so Mrs C did not receive any capital from the sale.
21. The Home’s manager and Ms B chased the Council on 20 January 2023 as Mrs C ran out of funds completely in October 2022 and had not paid her fees since then.
22. The Council’s finance officer replied and said he could not progress the finance assessment until a Care Act assessment had been carried out to confirm that Mrs C was eligible for services. The finance officer said he would escalate this to the Council’s First Response team and ask that team to contact Ms B as soon as possible.
23. The Home’s manager complained to the Council on 27 February 2023 as there had still been no progress since September 2022 when Ms B first contacted the Council. Mrs C now owed the Home £30,000 in unpaid fees.
24. The Council responded to the Home’s complaint on 23 March 2023 and said:
• The Council was not responsible for Mrs C’s financial assessment as she was not placed there by the Council.
• She should be assessed by her placing authority where she was residing before her placement.
25. The Home’s manager responded on the same day and said:
• Mrs C was not placed by any authority. As he had explained, she was a self-funder.
• Ms B had previously contacted council K and council K had sent an email to Ms B on 5 September explaining that Mrs C was ordinarily resident in Haringey as she was self-funding her placement and chose to live in Haringey.
26. The Council confirmed on 12 April 2023 that it had sent a request for a Care Act assessment to the Assessment Duty Team.
27. The Council sent a financial assessment form to Ms B on 26 April 2023 and she returned the form. The Home’s manager chased the Council in May 2023 as Mrs C’s debt had increased to £45,000.
28. The social worker visited Mrs C on 16 June 2023. The social worker noted that the Home’s weekly fee of £1,450 was higher than what the Council would normally pay (£990) and informed Ms B of this. She said its Brokerage team could try to negotiate a cheaper rate, but she wanted to know what Ms B’s position would be if the Home did not agree a cheaper rate. The social worker said Mrs C could either move to a cheaper care home or Ms B would have to pay a top-up fee. Ms B said she was not able to pay a top-up fee so the social worker gave Ms B a list of alternative care homes without a top-up fee.
29. Ms B considered the care homes and said there were two care homes which would be suitable for Mrs C. Neither had any vacancies but she was told that one of the care homes would have a vacancy soon.
30. The Home’s manager took his complaint to the Ombudsman on 10 July 2023 as it had been almost a year since Ms B contacted the Council for an assessment and the Home had still not been paid. Mrs C’s debt was now £60,000.
31. In August 2023 Ms B became Mrs C’s representative in the complaint to the Ombudsman instead of the Home’s manager. The social worker completed Mrs C’s Care Act assessment.
32. On 6 September 2023, the Council’s funding panel agreed to repay the debt to the Home.
33. On 8 September 2023 the Council informed Ms B of the outcome of the panel. The Council said Mrs C reached the threshold on 1 November 2022 and that she had a debt of £70,151 that needed to be repaid.
34. Ms B replied and said that was not correct. She said Mrs C reached the threshold in May 2022, but ran out funds completely in November 2022 which is when she stopped paying the care home and the debt to the care home started.
35. The finance officer contacted the Home’s manager to start negotiating the rate it would pay to the Home and the following agreement was reached. The Council would pay:
• £1,000 per week from 1 December 2022 to 10 September 2023.
• The Council had offered to pay £950 from 11 September 2023. The Home said this was unsustainable but agreed to accept £950 until Mrs C found an alternative care home to move to.
36. On 14 September 2023 Ms B confirmed that one of the care homes that she liked had a vacancy and she wanted Mrs C to move to the care home.
37. However, the Home then agreed to accept a lower weekly rate of £1,180 and Ms B agreed to pay the weekly top-up fee of £230 in addition to the £950 that the Council would pay (subject to a contribution from Mrs C’s income).
38. In October 2023 the Council asked Ms B to resubmit the financial assessment form as it had been a year since she submitted the last form in September 2022.
39. In November 2023 the Council wrote to the Ombudsman to explain why it had taken so long to carry out the assessments. The Council said:
• Mrs C was a resident of council K before her move to the Home so the Council had ‘several tasks to complete including consulting our legal department to determine if [Mrs C] was indeed considered an ordinary resident of LB Haringey or an ordinary resident of [council K]’.
• Mrs C had sold a property so ‘checks were required regarding this.’
• The Council had a lengthy waiting list and considerable service pressures which meant that a Care Act assessment was prioritised accordingly.
• Mrs C was in a safe place and not at risk in the community.
• The Council needed to arrange a top-up fee agreement.
• The finance department could not complete the financial assessment until the social services department had approved the placement at the Home.

Further information

40. I asked the Council to provide me with a summary of the legal advice it had obtained regarding ordinary residence. The Council replied and said: ‘No legal advice sought re ordinary residence.’
41. I contacted the Council for an update in January 2024. The Council said it had repaid the Home from September 2023. Ms B had paid the top-up fee from that date and Mrs C was paying her contribution from her income.
42. The Home had still not been repaid its fees from December 2022 to September 2023, but the Council said this would happen soon. The Council also said that it would ask Mrs C to pay her contribution towards the fees from 1 December 2022 so it would send her an invoice.
43. I asked the Council whether it was planning to repay the fees that Mrs C paid to the Home between May 2022, when she reached the threshold and November 2022, when she ran out of money. The Council said it thought that Mrs C reached the threshold in November 2022 so it would have to carry out some further enquiries in relation to this.

Analysis

44. The Council had a duty to assess Mrs C’s needs under the Care Act, to provide her with a care plan and to carry out a financial assessment.
45. Ms B contacted the Council in September 2022 and asked the Council to carry out a Care Act assessment and a financial assessment. The Council did not carry out these assessments until August 2023 and September 2023, a year later. There were then further delays in terms of the payments and the Council has still not paid all the necessary refunds, at the time of writing, 2 years later.
46. I have considered the reasons the Council has provided for the delay. I accept that it may have taken the Council a little longer to carry out the assessments, but the reasons it gave did not justify a delay of this magnitude and therefore there was fault.
47. Firstly, the fact that Mrs C moved from council K to Haringey should not have delayed matters significantly. This was a straightforward case and the Care Act Guidance was clear that Mrs C’s ordinary residence moved to Haringey as soon as she decided to move there. The Council’s reply to the Home dated 23 March 2023 which said that Council K was responsible for Mrs C was incorrect and delayed matters unnecessarily.
48. Similarly, the fact that Mrs C had sold a property should not have delayed matters as she had negative equity. In any event the Council had a duty to carry out the Care Act assessment regardless of what a person’s financial status was.
49. I note the significant service pressures the Council faced and their long waiting list. I do not underestimate how difficult it was for the Council to provide the service. Nevertheless, the Council’s duty to provide the service remained.
50. Also, the Council said Mrs C was not a priority because she was ‘in a safe place and not at risk in the community.’ That may be true but that was only because the Home was willing to allow Mrs C to remain there without payment even though she had built up a significant debt of £70,000. A lot of care homes would not have tolerated this and would have evicted Mrs C.

Injustice and remedy

51. If the Ombudsman finds fault and injustice, we can recommend a remedy. The aim of the Ombudsman’s remedy is to put the person in the position they would have been if the fault had not happened. In terms of direct financial loss, there are two relevant time periods.

28 May 2022 – 30 November 2022

52. Mrs C reached the threshold of £23,250 on 28 May 2022 and became eligible for Council funding, but she continued to pay the £1,450 weekly fee to the Home until 30 November 2022 when she ran out of money. The Council should repay Mrs C the fees for this period, minus Ms B’s top-up fee of £230 and Mrs C’s contribution.
53. The Council has said it will do this, but it will be subject to receiving Mrs C’s bank statements, sole and joint, for the entirety of 2022. This would enable the Council to determine that there has not been a deliberate deprivation of assets and to check that Mrs C’s capital reached the threshold of £23,250 in May 2022. Ms B has said that she can send the bank statements.

1 December 2022 – September 2023

54. Mrs C stopped paying the Home on 1 December 2022 and the Council started paying the Home’s fees in September 2023. The Council has already agreed to repay the Home at a rate of £1,000 a week. (I am not clear, at the time of writing, whether this payment has been made but I assume it has). The Council has sent an invoice to Mrs C for the contribution during that period. The top-up fee is not applicable as the Home agreed to a lower weekly fee during that time. Therefore, there is no further payment outstanding from the Council for this period of time (on the assumption it has now repaid the Home).
55. Ms B has also suffered an additional injustice because of the fault. Ms B has said that Mrs C, because of her dementia, was shielded from the stress of the delay, but I have no doubt that the stress caused to Ms B was great. She had to continuously chase the Council, for months and months, and lived with the fear that Mrs C would be evicted from the Home. This should not have happened.
56. I therefore recommend the Council pays Ms B £300 as a symbolic amount for the distress she has suffered because of the fault.

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Agreed action

57. The Council has confirmed that it will take the following actions within one month of the final decision. It will:
• Apologise in writing for the fault.
• Repay Mrs C for the fees she paid from 28 May 2022 to 30 November 2022, as set out in paragraphs 52 and 53.
• Pay Ms B a symbolic amount of £300 for the distress she suffered.
• Remind relevant officers of the guidance regarding ordinary residence and the expectations in terms of timescales for assessments.

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Final decision

58. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman