Summary: The Council delayed meeting Ms C’s adult social care needs, and her parents needs as carers, because it was focussed on disputing ordinary residence. The Council is now progressing matters as it should. The Council will apologise and pay Mr & Mrs B £600 to acknowledge the impact on them.

The complaint

1. The complainant, who I will call Mr B, says following his daughter (Ms C’s) move to stay temporarily with her parents in Wiltshire, she has been without formal adult social care support. Mr & Mrs B have had to meet Ms C’s needs in the interim. This is because of a dispute about ordinary residence between two councils, but the guidance is clear that in the interim the person’s needs should be met. Mr B says because Ms C is living in Wiltshire, the local council should be meeting Ms C’s care needs while the dispute is settled. 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’.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. 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 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).
5. This complaint is about the actions of Wiltshire Council, the actions of West Sussex County Council are considered under a separate complaint.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

7. 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.
8. 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.
9. 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.
10. 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:
11. “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.”
12. 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.
13. 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.
14. 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’.
15. 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.
16. 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

17. Ms C lived in a supported living placement in Bristol (placement A), which was arranged and financed by West Sussex County Council.
18. Ms C had some problems with her placement, 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. West Sussex Council did not mention any potential impact on Ms C’s ordinary residence. West Sussex 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.
19. There is no evidence to show West Sussex 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 in Wiltshire, or how it would meet Mr & Mrs B’s needs as carers. West Sussex 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. West Sussex Council says it considered Mr & Mrs B’s needs as carers, but Mr & Mrs B said they did not need support at the time; West Sussex 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 West Sussex Council did not need to provide support for this short period, but they expected to discuss how West Sussex Council would meet their needs following return from holiday. Mr B disputes West Sussex Council directed them to Wiltshire ‘should they change their view’ as it was known Ms C needed an adequate placement to meet her needs.
20. In June Ms C decided she did not want to return to placement A. West Sussex Council confirmed it would give notice to the placement for the care support, Ms C would need to end her tenancy, which she did. Mr B questions Ms C’s mental capacity to make this decision; West Sussex Council decided Ms C had capacity as she could understand, recall, weigh up and communicate relevant information about her feelings on placement A.
21. In July both Mr B and West Sussex Council made a referral to Wiltshire Council and asked it to complete an assessment of care and support needs for Ms C, and a carers assessment for Mr & Mrs B. West Sussex County Council asked Wiltshire to confirm it is the lead authority given West Sussex Council said no other authority was currently supporting Ms C and she was resident in the Wiltshire area.
22. The Council assigned a social worker in July, in August it started an assessment of Ms C’s care and support needs, which the document shows it completed 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. Mr B says the Council only started the assessment after he got his local MP involved because the family was getting no support. Mr B says the assessment was not complete in October, he received a draft in August which was full of errors and received amended versions in January and February which still contain errors.
23. The Council referred the case to its legal services for advice on ordinary residence, as Ms C wishes to return to live in West Sussex and continue the activities she enjoys, which she has participated in since 2017.
24. In December 2021 Wiltshire Council contacted West Sussex County Council to dispute Ms C’s ordinary residence and to ask West Sussex County Council to meet Ms C’s needs. If it did not Wiltshire would do so but look to claim back the costs when the dispute was settled. West Sussex County 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.
25. In January the Council confirmed Ms C’s indicative personal budget and is sourcing a supported living placement to meet Ms C’s eligible needs. The Council completed a carer’s assessment with Mrs B in August and provides six hours per week to Mrs B for a carer’s break. However, this was not achieved because the Council could not provide a care agency at times that didn’t clash with Ms C’s activities. The Council is going through the process to provide Ms B with direct payments, so she can employ a personal assistant to meet Ms C’s needs and allow Ms B a break from her caring role. Mr B says there is delay in this process.

Was there fault causing injustice?

26. 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 pursue the dispute and meet needs in the interim.
27. The Council followed the correct process to assess Ms C’s care and support needs and Mrs B’s needs as a carer. However, the Council then delayed progressing matters, it did not confirm Ms C’s personal budget and start looking for suitable placements to meet Ms C’s needs for three months, nor check on whether it was satisfactorily meeting Mrs B’s needs as a carer. The Council accepts this delay was unacceptable and that it should have pursued meeting Ms C’s needs at the same time it was pursuing legal advice.
28. The delay left the family in limbo, not knowing what was happening. This continues to affect Ms C’s mental health daily. Ms C is anxious and constantly questions her parents about her living options, particularly Mrs B.
29. Mr & Mrs B have met all of Ms C’s care and support needs. The only downtime they get is once Ms C goes to bed at 9pm. Mr & Mrs B feel they have no space or freedom to do what they want, and their own lives have been placed on hold. Mr & Mrs B feel exhausted, and Mrs B is now on medication.
30. Ms C needs one of her parents with her constantly, she does not amuse herself. Because of Ms C’s preference most of the pressure is on Mrs B. Mr & Mrs B have continued the activities Ms C took part in when living in her supported living placement, 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.
31. I am pleased to see the Council accepts its failings and is starting to take the correct actions to meet Ms C’s adult social care needs, and her parents needs as carers. Mr B says there is delay in sorting out the direct payments, and at present the family are funding support themselves.
32. The Council is also taking the correct action to pursue the dispute about ordinary residence. The key thing is to ensure Ms C and her family is no longer impacted by that dispute.

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Agreed action

33. To acknowledge the impact on Ms C and Mr & Mrs B, the Council will:
• Apologise to Ms C and Mr & Mrs B for its delays.
• Pay Mr & Mrs B £600 to recognise the impact on them of becoming carers with no support for longer than is necessary.
34. The Council should complete the above actions within one month of the Ombudsman’s final decision and provide evidence of its compliance to the Ombudsman.

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Final decision

35. I have completed my investigation on the basis the actions the Council is now taking, and the agreed actions, are sufficient to resolve the problem and acknowledge the impact on the family.

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Investigator's decision on behalf of the Ombudsman