Summary: Mr B asked Croydon Council to carry out an assessment of his mother’s needs in April 2023 and the assessment has still not been carried out. Mr B’s mother resides in a care home in Somerset and both Croydon and Somerset Council said it was the other council’s duty to assess Mr B’s mother. We have found fault in the delay and the failure of the councils to respond. The councils have agreed to apologise, pay a symbolic sum and Somerset Council will carry out the assessments.

The complaint

1. Mr B complains on behalf of his mother, Mrs D. He says he asked Croydon Council in April 2023 to assess Mrs D’s needs. He says Mrs D is living in a care home in Somerset against her will. Both Croydon and Somerset Council said it was not their duty to assess Mrs D.

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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 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)
3. 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

4. I have discussed the complaint with Mr B. I have considered the documents Croydon Council and Somerset Council have sent, the relevant law, guidance and policies and comments on the draft decision.

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What I found

Law, guidance and policies

Assessment of needs

5. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.

Ordinary residence

6. The local authority’s responsibility for meeting a person’s eligible needs under the Care Act is based on the concept of ordinary residence. There is no definition of ordinary residence in the Care Act, therefore, the term should be given its ordinary and natural meaning.
7. 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.’
8. 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.
9. The Care and Support (Disputes Between Local Authorities) Regulations 2014, set out the procedures councils must follow when disputes arise regarding a person’s ordinary residence. They must first take all reasonable steps to resolve the dispute between themselves. It is critical the person does not go without the care they need while councils are in dispute. The council meeting the needs of the adult or the carer on the date the dispute arises must continue to do so until it is resolved. If no council is meeting the person’s needs, then the council where the person is living or is physically present must accept responsibility until the dispute is resolved. The council which has accepted provisional responsibility is called the ‘lead authority’.
10. If, having followed the procedure set out in the dispute regulations, the councils are still unable to resolve a particular dispute, the lead council must apply for a determination to the Secretary of State or appointed person. This should be done as soon as the councils agree they cannot resolve it and, in any event, no later than four months after the dispute started.

Mental capacity

11. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves.
12. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
13. If there is a conflict about whether a person has capacity to make a decision or what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Mental capacity and ordinary residence

14. When establishing the ordinary residence of adults who lack capacity, local authorities should adopt the Shah approach, but place no regard to the fact that the adult, by reason of their lack of capacity cannot be expected to be living there voluntarily.
15. This involves considering all the facts, such as the place of the person’s physical presence, their purpose for living there, the person’s connection with the area, their duration of residence there and the person’s views, wishes and feelings (insofar as these are ascertainable and relevant) to establish whether the purpose of the residence has a sufficient degree of continuity to be described as settled, whether of long or short duration.

Deprivation of liberty

16. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home to apply for authorisation.
17. Care providers make an application for DoLS authorisation to the supervisory body. This is the local authority for the area in which the person is ordinarily resident. The regulations says that if there is a dispute about ordinary residence, this will be handled by the Secretary of State. Until a decision is made, the local authority that received the application must act as the supervisory body.
18. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.

Safeguarding

19. Section 42 of the Care Act 2014 says the local authority should start a safeguarding enquiry if an adult in its area:
• has needs for care and support;
• is experiencing, or at risk of, abuse or neglect and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

What happened

20. Mrs D is a 94-year-old woman with a diagnosis of Alzheimer’s disease. She owns a house in Croydon and lived there until October 2022. She was supported by her son, Mr B, who lived with her. Mr B and his brother, Mr C have a Lasting Power of Attorney (LPA) for property and finance for Mrs D, but no LPA for health and welfare.
21. In October 2022, Mr B and Mr C agreed that Mrs D should stay with Mr C. Mr B says this move was agreed on a temporary trial basis.
22. Mr B says Mr C told him in April 2023 that he could no longer cope with Mrs D at home. Mr B made an online referral to Croydon Council on 27 April 2023 and asked the Council to carry out an assessment of Mrs D’s needs for care and support. He said Mrs D did not want to live in a care home in Somerset so his plan was for Mrs D to return to live with him in Croydon.
23. Mr B chased the Council on 25 May 2023 as he had not received a reply to his request for an assessment.
24. On 2 June 2023 Mrs D moved to a care home in Somerset on a respite basis and returned to live with Mr C on 19 June 2023.
25. Mr B complained to the Council on 20 June 2023 as the assessment had still not been carried out. He had been informed that the request had been given the ‘lowest’ priority. Mr B said he had contacted the Ombudsman about the excessive delay.
26. Croydon Council responded on the same day and said it would not be able to carry out the assessment as Mrs D was living in Somerset. Somerset Council could carry out an assessment to transfer the case to Croydon. The Council sent an email the following day asking Mr B to ring the Council.
27. Mr B rang Croydon Council on 22 June 2023. The notes of the conversation say that Mr B ‘has been informed that Croydon can ask Somerset to undertake the assessment on Croydon’s behalf and this is the option [Mr B] wants.’ The note ended with: ‘I advised [Mr B] I will inform my manager and someone will contact him regarding assessment.’
28. Mrs D returned to live at the care home in July 2023 and has been living there since that date.
29. Croydon’s social worker contacted Somerset social services on 17 July 2023. Somerset’s social worker said they did not have any involvement with Mrs D. She was self-funding and the family had not asked for support.
30. Croydon’s social worker asked Somerset’s social worker to carry out a mental capacity assessment of Mrs D to assess if she had capacity to decide where she wanted and said: ‘I can pick it up from there.’ The social worker said Mr B and Mr C disagreed about where Mrs D wanted to live. Croydon’s social worker ended the email with: ‘Please let me know your thoughts as I cannot proceed without a MCA.’ There was no response to this email.
31. Croydon Council responded to Mr B’s complaint on 19 July 2023 and said:
• The Council told Mr B in April 2023 that the referral was Somerset’s responsibility and the case was made inactive.
• Mr B then contacted the Council on 20 June 2023 with a new request for an assessment. The Council responded on the following day and a social worker had been allocated.
• In hindsight, it said the request should have been referred for an assessment in April and the Council apologised for the incorrect information it gave in April 2023.
32. Mr B made a referral to Somerset Adult Safeguarding team on 4 August 2023. He said Mrs D had written a letter stating she wanted to go home immediately. He said Mrs D had been placed at the care home against her will as she had previously written a letter to Mr C stating she wanted to go home. He told Somerset that he had asked Croydon Council to assess Mrs D’s needs in April 2023 and this had still not been done.
33. Somerset Council carried out a risk assessment of Mrs D on 8 September 2023 to assess whether Mr B’s referral met the threshold for a safeguarding enquiry. The social worker said:
• Mrs D had a diagnosis of Dementia and may lack capacity to make certain decisions. She had little to no short or long-term memory.
• Mrs D was unable to use stairs. She could walk with a wheeled walking frame, but was at risk of falls. She needed assistance from 1 carer for transfers.
• Mrs D could not go outside alone as she would be at risk of falls and may get lost.
• Mrs D was usually happy and content and showed no signs of low mood.
• Mrs D sometimes forgot who was visiting her or why and needed to be assisted in this.
• Mrs D needed assistance with personal care and medication as she was unable to manage this without support.
• An application for a DoLS authorisation had been submitted to the supervisory body which was Somerset Council.
34. Somerset Council decided that Mr B’s referral did not meet the threshold for a safeguarding enquiry.
35. On 8 September 2023 the Ombudsman informed Croydon Council that it would investigate Mr B’s complaint.
36. Croydon’s social worker chased Somerset Council on 12 September 2023. Croydon’s social worker informed Somerset’s social worker that Mr B had raised a complaint with the Ombudsman about the delay in the assessment.
37. Somerset’s social worker said:
• Mr B had contacted Somerset in August and said he had asked Croydon to carry out the assessment in April. As the assessment had not been carried out, Mr B told Somerset he would go to the Ombudsman.
• Mr B had raised a safeguarding concern with Somerset that Mrs D was kept in Somerset against her will. Somerset Council had decided that the referral did not meet the threshold for a safeguarding enquiry.
• There was no other evidence that Somerset Council had ever been asked to carry out an assessment of Mrs D under the Care Act.
38. Somerset then said on 15 September 2023 that it would allocate a social worker to meet with Mrs D and the family ‘to discuss the situation and where necessary complete a Care Act assessment and Mental Capacity Assessment if required.’
39. On 28 September 2023, Somerset Council said the social worker would visit Mrs D next week. The care home where Mrs D was staying had said:
• Mrs D went to the care home on 31 July 2023. She was self-funding in a long-term placement.
• They felt Mrs D had capacity to decide where she wanted to live and had repeatedly said she was happy where she was.
• There was no DoLS in place.
40. Somerset’s social worker visited Mrs D on 3 and 4 October 2023 and said Mrs D appeared happy and content at the care home and said she liked being there. They said: ‘I would question whether she has capacity to understand her accommodation needs and be able to weigh these up.’
41. On 4 October 2023 Somerset’s manager sent this reply to Croydon’s social worker:
• Somerset had no immediate concerns about Mrs D.
• Mrs D had a property in Croydon so her ordinary residence was in Croydon and she was their responsibility.
• Mrs D needed a best interest decision about where her needs could be best met.
• Somerset had ‘a great amount of work ourselves so cannot offer any further support.’
• Somerset Council would close the case.
42. On 3 November 2023 Somerset’s manager confirmed that this continued to be the Council’s position. He said Croydon Council should carry out a mental capacity assessment and a best interest decision as Mrs D’s ordinary residence was in Croydon. The case remained closed to Somerset.
43. Mr B made a complaint to Somerset Council about its lack of response following his safeguarding referral.
44. Somerset Council responded to Mr B’s complaint on 3 November 2023 and said:
• Somerset’s social worker had visited Mrs D twice at the care home and Mrs D was pleasant, demonstrated no distress and indicated she was content at the care home.
• There were some aspects of the conversation that indicated that Mrs D had memory issues and cognition difficulties.
• As Mr B and Mr C disagreed about where Mrs D should live and as there were concerns about her mental capacity, a mental capacity assessment should be carried out of Mrs D and a best interest decision made by the responsible local authority.
• The responsible local authority was Croydon. Mrs D was ordinarily resident in Croydon because she owned a house there and was not a permanent resident at the care home.
• Somerset Council would close the case.
45. On 14 November 2023 Croydon’s social worker told Somerset that Mrs D had been living in Somerset for over a year and was placed there with the mutual agreement of her sons. She was happy to continue to live there. Mrs D was therefore ordinarily resident in Somerset and there would be no further involvement from Croydon.

Analysis

46. I have explained to Mr B that the Ombudsman cannot make an ordinary residence decision as this is the remit of the Secretary of State. The Ombudsman can also not assess Mrs D’s mental capacity or make any best interest decisions. Therefore, there is a limit to the investigation and the remedy that the Ombudsman can provide in a case such as this one.
47. Mr B sent his initial request for a needs assessment to Croydon Council on 27 April 2023 but the Council took no further action in relation to this referral. The Council did not respond to the referral until 20 June 2023 and only did so after Mr B complained to the Council about the delay. I agree there was fault in Croydon Council’s failure to provide any response to the referral for two months.
48. There was further fault in Croydon Council’s complaint response dated 19 July 2023 as the Council said it had responded to the referral in April 2023 which was not correct as the Council did not respond until June. The Council also said in its complaint response that it should have carried out the assessment in April 2023 and said a social worker had now been allocated to carry out the assessment. However, the Council then still did not progress the matter and then later changed its mind again and said it was not responsible for Mrs D’s assessments after all.
49. Clearly, these incorrect and contradictory communications by Croydon Council were fault and meant that Mr B did not pursue an assessment by Somerset Council as he thought that Croydon Council would do so.
50. I note Croydon Council then contacted Somerset Council in July 2023.
51. Somerset Council failed to respond to Croydon Council’s request for a mental capacity assessment on 17 July 2023. So there was fault in Somerset Council’s actions in that respect.
52. However, the fault was shared with Croydon Council as I note that Croydon Council did not take any further action to chase Somerset Council until 12 September 2023, after the Ombudsman informed the Council on 8 September 2023 that it would investigate Mr B’s complaint.
53. There is no fault in Somerset Council’s actions relating to the safeguarding referral. The social worker visited Mrs D and assessed the risk and concluded that Mrs D’s situation did not meet the threshold for a safeguarding enquiry.
54. However, it appears to me that this risk assessment would have required the social worker to carry out an assessment of Mrs D’s capacity to decide where she wanted to live. The documents all suggested that the social worker concluded that Mrs D did not have the capacity to make that decision although the Council continued to say it had not carried out an assessment of Mrs D’s capacity to decide where she wanted to live so there was some confusion in Somerset Council’s approach.
55. Once the Ombudsman started its investigation, both councils then said that Mrs D’s ordinary residence was in the other council’s area and they would take no further action.
56. I cannot say where Mrs D’s ordinary residence lies as that is not the Ombudsman’s role. In any event, Mrs D’s ordinary residence cannot be determined without an assessment of her mental capacity to make decisions about her care and where she wants to live.
57. However, the regulations say that, when there is an ongoing dispute between two local authorities about ordinary residence, such as in this case, the duty to meet needs under the Care Act and to determine the DoLS authorisation while the ordinary residence is determined, lies with the local authority where the person is actually staying so that would be Somerset Council in Mrs D’s case.
58. What should not happen is that a person is left in limbo while both councils argue about ordinary residence. I appreciate that Mrs D was in a care home and self-funded her care package. Therefore, she was safe and she may not have been high on the list of both councils’ priorities. However, Mrs D still had a right to an assessment of her needs under the Care Act, as this should be provided regardless of the funding status and she had a right to a mental capacity assessment, particularly as her continued stay in the care home may require a DoLS authorisation.

Injustice and remedy

59. The main fault that I have found is a delay in carrying out the assessments of Mrs D’s mental capacity and an assessment of her needs under the Care Act. The main injustice is that it is not known whether, if those assessments had been done in April 2023, the outcome may have been different.
60. Mr B said that, at the time (April 2023), Mrs D had the capacity to decide where she wanted to live and he said that she wanted to move to back to her home in Croydon. Mr B’s position continues to be that Mrs D has the capacity to decide where she wants to live and wants to return to Croydon. Mr B says Mrs D has written two personal letters stating she wants to go home and is happy for a live-in carer to provide her with care and support.
61. When I spoke to Mr B, I asked him what remedy he sought from the Ombudsman if the Ombudsman found fault. He said he wanted Croydon Council to carry out a needs assessment. By this he meant that Croydon Council should advise him on how to transport Mrs D from Somerset to Croydon, what adaptations should be carried out in Mrs D’s house in Croydon and what support package Mrs D needed at home.
62. I have explained to Mr B that I cannot provide that remedy. I have told Mr B that I can ask Somerset Council to provide assessments as follows:
• A mental capacity assessment of Mrs D’s ability to decide where she wants to live.
• If Mrs D lacks the capacity to decide where she wants to live, Somerset Council should organise a best interest meeting so that a decision can be made in Mrs D’s best interests. Somerset Council should also consider the appointment of an independent mental capacity advocate for Mrs D.
• A needs assessment of Mrs D and a care plan.
63. I note that Somerset’s risk assessment from September 2023 says a DoLS application has been made to Somerset Council so it may be that Somerset Council is already progressing that application. If a DoLS application has been made, then Somerset Council would have to carry out a mental capacity assessment of Mrs D in any event.

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Agreed action

64. Both councils have agreed to take the following actions within one month of the final decision:
• They will apologise in writing to Mr B for the fault I have identified.
• They will pay Mr B £100 each as a symbolic amount for the injustice caused by the fault.
65. Somerset Council has agreed to offer assessments of Mrs D as set out in paragraph 62 within one month of the final decision.
66. The councils should provide us with evidence they have complied with the above actions.

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Final decision

67. I have completed my investigation and found fault by the councils. The councils have 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