West Sussex County Council (21 008 027)
Category : Adult care services > Assessment and care plan
Decision : Not upheld
Decision date : 22 Mar 2022
The Ombudsman's final decision:
Summary: Mr B says the Council made the wrong decision on ordinary residence, which has left his family without any adult social care support. The Council took legal advice to decide Ms C’s ordinary residence; so, we cannot question or criticise the Council’s decision as it followed the correct process. The Ombudsman cannot decide where Ms C is ordinarily resident. There is an ongoing dispute which will decide who is responsible to meet Ms C’s needs. The Council believed another council was meeting the family’s needs. The Council made proper and timely referrals and shared information with the other council to allow that to happen. There is no fault by the Council.
The complaint
- The complainant, who I will call Mr B, says following his daughter (Ms C) returning to her parents’ home as a place of safety, in agreement with the Council, and not wanting to return to her supported living placement, the Council took the decision she was no longer ordinarily resident in its area and withdrew all support. The Council did not even provide any interim support while awaiting the authority where Ms C lives to take over. This has left Ms C and her parents with no support. Mr B says this cannot continue, he and his wife are exhausted. Mr B disputes the Council’s decision on ordinary residence as Ms C’s move was never intended for a settled purpose, it was a voluntary move, but the intent was always that it was temporary. Ms C continues to take part in her existing activities in Bristol and never intended to move to Wiltshire for settled purposes. Mr B wants the dispute resolved and services to be put in place as soon as possible before he and his wife experience ‘carer burnout’.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I considered:
- Information provided by Mr B, including during a telephone conversation.
- Information from the Council in response to my enquiries.
- The Care Act 2014 and associate statutory guidance.
- The Mental Capacity Act 2005 and associated statutory guidance.
- ‘Ordinary residence guide. Determining local authority responsibilities under the Care Act and the Mental Health Act’ published by the Local Government Association and Adass (directors of adult social services).
- This complaint is about the actions of West Sussex County Council, the actions of Wiltshire Council are considered under a separate complaint.
- Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should happen
- The concept of ordinary residence is not defined in the Care Act 2014, though there are sections of the Care and Support Statutory Guidance (the statutory guidance) dedicated to the subject, and much legal case law relevant to the issue.
- The council is only required to meet needs in respect of an adult who is ‘ordinarily resident’ in its area. In most cases this will be straightforward to identify and know which council is responsible to meet the eligible social care needs of that individual. In some cases it is not so straightforward, mostly when a person is moving or has moved from one geographical area to another.
- Where there is a dispute about which council is responsible, the end point is resolution by the Secretary of State for Health. However, a formal referral to the Secretary of State should be the last resort. Councils should make all efforts to resolve disputes themselves, including early referral to in-house legal teams.
- The concept of ordinary residence involves questions of both fact and degree. Factors such as time, intention, and continuity (each of which may be given different weight according to the context) must be taken into account. 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:
- “unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view 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.”
- Local authorities must always have regard to this case when determining the ordinary residence of adults who have capacity to make their own decisions about where they wish to live. 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 must 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.
- A settled purpose can be established at the instant of an individuals move to a new area, if that move is with the intention of remaining there permanently or for the foreseeable future. Case law established that the settled purpose could be of long or short duration, so the fact an individual is only temporarily at an address is not a bar to them being ordinarily resident there. If the purpose of the presence is not settled, the outcome will be they are of no settled residence. In which case the duty to meet eligible needs lies with the council in whose area they are physically present.
- The Care and Support (Disputes Between Local Authorities) Regulations 2014 (the regulations), set out the procedures local authorities must follow when disputes arise between local authorities regarding a person’s ordinary residence. When a dispute between two or more local authorities occurs, local authorities must take all reasonable steps to resolve the dispute between themselves. It is critical that the person does not go without the care they need, should local authorities be in dispute. The local authority that is meeting the needs of the adult or the carer on the date that the dispute arises, must continue to do so until the dispute is resolved. If no local authority is currently meeting the person’s needs, then the local authority where the person is living or is physically present must accept responsibility until the dispute is resolved. The local authority which has accepted provisional responsibility is referred to as the ‘the lead authority’.
- The lead authority must identify all the authorities involved in the dispute and co-ordinate an ongoing dialogue between all parties involved. The parties involved must provide the lead authority with contact details of a named person in relation to the dispute. The lead authority must be responsible for the co-ordination of any information that may be relevant to the dispute and keep all parties informed of any developments that may be relevant to the dispute. The lead authority must also keep the person, or their carer if appropriate, fully informed of dispute in question and of progress regarding any resolution.
- If, having followed the procedure set out in the dispute regulations, the authorities are still unable to resolve a particular dispute, the lead authority must apply for a determination to the Secretary of State or appointed person. This should be done as soon as the local authorities agree that they are unable to resolve it and, in any event, no later than four months of the date the dispute first arose. The provisional acceptance of responsibility by the lead authority will not influence any determination made by the Secretary of State.
What did happen
- The Council contracted services to meet Ms C’s adult social care needs, a supported living placement (placement A).
- Ms C had some problems with her placement, and had a decline in her mental health, and had suicidal thoughts. To keep Ms C safe all parties agreed she should move to her parents in Wiltshire. Mr & Mrs B said they could meet Ms C’s needs at their home, but only for a short time. The Council did not mention any potential impact on Ms C’s ordinary residence. The Council says the Care Act is clear that decisions around ordinary residence should only take place once needs are assessed and met, so the issue was not raised at that time.
- There is no evidence to show the Council reviewed how it would meet Ms C’s needs following her change in circumstance when she temporarily moved to Mr & Mrs B’s house, or how it would meet Mr & Mrs B’s needs as carers. The Council says it offered support to Ms C at her parents’ home but in conjunction with her parents she did not feel she needed any support. The Council says it considered Mr & Mrs B’s needs as carers, but Mr & Mrs B said they did not need support at the time; the Council says it directed them to Wiltshire Council should they change their view. Mr B says there was a planned family holiday, and Ms C moved to stay with them shortly before that to give her an extended break. It was agreed the Council did not need to provide support for this short period, but they expected to discuss how the Council would meet their needs following return from holiday. Mr B disputes the Council directed them to Wiltshire ‘should they change their view’ as it was known Ms C needed an adequate placement to meet her needs.
- Under the Mental Capacity Act people are deemed to have the capacity to make their own decisions unless there is a good reason to doubt that. Mr B argues that Ms C feeling suicidal is good reason to query her mental capacity to make important decisions about her living arrangements. The Council says it waited two weeks before completing a reassessment of Ms C’s care and support needs. During the reassessment Ms C could understand, recall, weigh up and communicate relevant information about her feelings on placement A and whether she wished to return there. There is no evidence she had suicidal thoughts at this time. On this basis the Council deemed Ms C to have capacity to decide where to live and did not need to complete a formal mental capacity assessment. Capacity decisions are time and decision specific, meaning capacity can fluctuate but you must assess the person’s ability to understand, retain and weigh up the information to make the decision at hand.
- In June Ms C decided she did not want to return to placement A. The Council confirmed it would give notice to the placement for the care support, Ms C would need to end her tenancy, which she did.
- The Council sought legal advice about ordinary residence given Ms C’s decision not to return to placement A. The legal advice said this decision meant Ms C had become ordinarily resident in Wiltshire.
- The Council’s reassessment document stated Ms C had decided to live in Wiltshire, so the responsibility for assessing and meeting needs going forward should be with the local council where she is resident, so Wiltshire Council. The Council shared its reassessment with Wiltshire in July. There was initially email correspondence between the councils about ordinary residence. The Council asked Wiltshire to complete an assessment of need for Ms C as someone in its area in need of care and support and asked it to assess Mr & Mrs B’s needs as carers. The Council suggested Wiltshire Council should then come back to it with any legal reasons for not accepting ordinary residence of Ms C. The Council asked Wiltshire to confirm it is the lead authority given no other authority was currently supporting Ms C and she was resident in the Wiltshire area, even though at that time Ms C was still paying client contribution to the Council for care support until the end of July.
- Wiltshire Council assigned a social worker in July and completed an assessment of Ms C’s care and support needs in October. This found Ms C has eligible social care needs that are being met in the short term by her parents while long term support arrangements are made. The assessment stated Wiltshire Council would search for a supported living placement.
- In December 2021 Wiltshire Council contacted the Council to dispute Ms C’s ordinary residence and to ask the Council to meet her needs. If it did not Wiltshire would do so but look to claim back the costs when the dispute was settled. The Council confirmed it was not willing to meet Ms Cs needs since she decided to move. Wiltshire Council said it would do so in the interim and is pursuing the dispute through the correct process.
- Neither council has met Ms C’s needs from May, it has been left to Mr & Mrs B. Becoming full time carers has had a severe impact on Mr & Mrs B’s ability to pursue their own lives and interests. Ms C needs one of them with her constantly. They have continued the activities Ms C took part in when living in placement A, but due to their location it is a big commitment to travel at least an hour each way and then wait around for several hours while Ms C completes the activity. The situation has impacted Mrs B’s physical and mental health, she is constantly tired and has seen her GP who confirms her carer stress.
Was there fault causing injustice?
- It is not my role to decide where Ms C is ordinarily resident, only the Secretary of State can decide the dispute between the councils. My role is to consider whether the Council followed the correct process to make its decision.
- There were problems with placement A, and the Council was discussing alternative ways to meet Ms C’s needs. Ms C’s suicidal thoughts led to immediate action to ensure her safety. Everyone agreed she should move to her parents, and her parents were willing to support her for a short time to keep her safe.
- Ms C then chose not to return to placement A. In doing so, the Council says Ms C has chosen to live in Wiltshire, even if that is a temporary move for a short period. The Council decided this was enough for Ms C to become ordinarily resident in Wiltshire after it sought legal advice on the matter.
- Capacity decisions are time and decision specific, meaning capacity can fluctuate but you must assess the person’s ability to understand, retain and weigh up the information to make the decision at hand, which the Council did. I cannot criticise the Council’s decision that Ms C had capacity to decide to terminate her placement with placement A, as it followed the correct process in accordance with the Mental Capacity Act to make its decision.
- I have no evidence the Council placed Ms C with her parents as a way of meeting her care and support needs. The move was agreed by all parties due to issues at the placement and the impact on Ms C’s mental health. The evidence shows Ms C chose not to return to placement A and therefore willingly chose to live with her parents. I have no doubt this was not intended as a permanent move, but that is not enough for me to question or criticise the Council’s decision on ordinary residence. The Council made the decision following advice from its legal team and considering relevant law and guidance. It is not my role to say whether that decision is right or wrong.
- The Council has in the past disputed Ms C’s ordinary residence. Mr B suspects the Council has been trying to remove its responsibility for years and engineered this situation to remove its responsibility to fund Ms C’s care package. With Adult Social Care budgets stretched, it would be a benefit to a council for one of its residents to become ordinarily resident elsewhere and it no longer fund their care. I cannot find evidence to conclude the Council engineered the situation, there is no evidence the Council coerced Ms C to move to her parents and to terminate her placement at placement A. It is possible the ongoing dispute will conclude Ms C remains ordinarily resident in West Sussex, but for the reasons given I cannot criticise its decision that she is not.
- At the time of Ms C’s temporary move to her parents, Mr & Mrs B were not expecting to meet her needs for the length of time they have done. The dispute between the councils has led to Mr & Mrs B meeting Ms C’s needs without enough support as carers, and Ms C remaining living with them for longer than perhaps necessary.
- Although there is a significant impact on Mr & Mrs B, and on Ms C as she is uncertain on her future living arrangements, I cannot say this is because of fault of the Council. The Council made proper and timely referrals to Wiltshire Council and was of the impression that council would be meeting the family’s needs until the dispute was settled.
Final decision
- I have completed my investigation on the basis there is no fault by the Council.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman