Summary: There was fault by the Council because it failed to identify promptly that a different council was responsible for funding Mrs Y’s care and support. This caused avoidable confusion and distress. The Council needs to make symbolic payments and arrange training for relevant staff.

The complaint

1. Mr X complained Surrey County Council (the Council) withdrew funding for care and support for his mother Mrs Y at the last minute. He said this meant Mrs Y could not return to her home. He also complained the Council did not explain the law it used to justify its decision.
2. Mr X said Mrs Y was left bewildered and frustrated by the decision which was last minute and she lost faith in the Council.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered Mr X’s complaint to us, the Council’s response to the complaint and the Council’s case notes on Mrs Y. I discussed the complaint with Mr X.
6. Mr X 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

Relevant law and guidance

7. Section 39 of the Care Act 2014 mentions ordinary residence, but it does not define it.
8. Care and Support Statutory Guidance (CSSG) says:
1. 19.5 Ordinary residence is one of the key tests to establish whether a local authority must meet a person’s eligible needs. It is crucial that local authorities establish at the appropriate time whether a person is ordinarily resident in their area, and whether such duties arise.
2. 19.10 Local authorities must determine whether an individual is ordinarily resident in their area following the needs or carer’s assessment, and after determining whether the person has eligible needs
3. 19.11 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. This is particularly the case where there may be a dispute between 2 or more local authorities.
4. 19.12 The courts have considered the meaning of ordinary residence and the leading case is Shah v London Borough of Barnet (1983). Lord Scarman stated: “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.”
5. 19.15 …… Local authorities should apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long time. 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.
6. 19.74 People who self-fund and arrange their own care 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.
7. 19.75 In most cases, determining ordinary residence should be straightforward. However, there will be occasions where a person’s residency status is more complicated.
8. 19.76 A question as to a person’s ordinary residence can only arise where 2 or more local authorities are in dispute about the place of ordinary residence of a person. In such a case, the authorities may apply for a determination to the Secretary of State or appointed person.

What happened

9. Mrs Y owns her own home in Surrey. She moved into a care home in West Sussex in 2017. The Council’s records indicate Mrs Y arranged and paid for her care privately in 2017.
10. In April 2021, Mrs Y’s son contacted the Council saying Mrs Y was considering returning to live at home. The Council assessed Mrs Y’s needs and decided she was eligible for care and support. The notes indicate an Occupational Therapist (OT) carried out an assessment for equipment. The plan was for Mrs Y to go home for a two-week trial in October 2021. The notes indicate the Council ordered equipment for delivery and arranged a home care provider to provide a care package at home with four calls a day.
11. At the start of August, a member of the Council’s finance team completed a financial assessment to decide how much Mrs Y would pay towards the cost of her care. The case notes indicate the Council was aware Mrs Y had a deferred payment agreement with West Sussex County Council to fund her care home fees. (A deferred payment agreement is where a council loans a resident the money for their care home fees and places a charge on their property to recoup the costs)
12. The case records indicate two days before the planned move, the Council decided not to fund Mrs Y’s care and support for the trial because she was ordinarily resident in West Sussex. A note said officers had ‘given the family the option of delaying so we can advocate their position to West Sussex County Council.’
13. Mr X was unhappy and complained. The Council’s response set out the Shah case I have referred to at paragraph 8(d) and said there was an error in accepting Mrs Y as the Council’s responsibility and apologised for the upset caused.

Findings

14. The Council was at fault in failing to identify an issue of ordinary residence promptly. This should have been identified at the start of August when the finance team were completing Mrs Y’s finance assessment and noted a different local authority was funding Mrs Y’s care home placement through a deferred payment agreement. The Council should have referred Mrs Y’s case to West Sussex at the start of August and the failure to do so was not in line with Care and Support Statutory Guidance, paragraph 19.11 which says ordinary residence issues should not delay the process of meeting needs and if ordinary residence is not certain, an authority should meet needs first and then resolve the question later. I note Paragraphs 19.15 and 19.74 of Care and Support Statutory Guidance appear to describe Mrs Y’s situation as a self-funder who has moved to another area and sought council funding afterwards and this suggests she may have acquired ordinary residence in West Sussex. This strengthens my view the Council should have approached West Sussex promptly to settle the matter of which council was responsible for funding.
15. The fault I have identified caused Mrs Y and her family avoidable confusion and distress. It will have been particularly distressing for Mrs Y.

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Agreed action

16. The Council has already apologised which is a partial remedy for the injustice. It will also, within a month of my final decision:
• Make payments of £250 to Mrs Y and £150 to Mr X for the avoidable distress
• Hold a discussion between officers and Mrs Y and her family about whether they want a referral to West Sussex. If so, the Council should make the formal referral.
17. The Council will also organise training for adult social care and finance staff about ordinary residence. This should take place within three months of my final decision.

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Final decision

18. There was fault by the Council because it failed to identify promptly that a different council was responsible for funding Mrs Y’s care and support. This caused avoidable confusion and distress. The Council will make symbolic payments, ask the family about a referral to the other council and arrange training for relevant staff.
19. I have completed the investigation

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Investigator's decision on behalf of the Ombudsman