Summary: The delay in the financial assessment was not the fault of the Council.

The complaint

1. Mr X (as I shall call the complainant) says the Council took too long to assess his finances after he moved into a care home in its area, then increased his assessed contribution.

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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. 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

3. I considered the information provided by the Council and Mr X. I spoke to Mr X. Both Mr X and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

4. Where doubts arise about a person’s ordinary residence, it is usually possible for local authorities to decide that the person has resided in one place long enough, or has firm enough intention towards that place, to have acquired an ordinary residence there. Sections 18 and 20 of the Care Act 2014 make clear that local authorities have a duty to meet the eligible needs of people if they are present in its area but of no settled residence.
5. The law says what procedures local authorities must follow when disputes arise between them about 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, should local authorities be in dispute. The local authority meeting the needs of the adult or the carer on the date the dispute arises must continue to do so until the dispute is resolved. If no local authority is 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 regulations place a duty on the parties involved in the dispute to provide specified information to the Secretary of State or an appointed person.
6. The Care Act (Schedule 1) sets out that if in a placement under Northern Ireland law then they remain resident in that area even if subsequently placed in England. Placements from Northern Ireland to England, Wales or Scotland.

4(1): Where there are arrangements under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 for the provision of accommodation in England, the adult in question--

(a) is to be treated for the purposes of that Order and the Health and Social Care (Reform) Act (Northern Ireland) 2009 as ordinarily resident in the area of the relevant Health and Social Care trust, and

(b) is accordingly not to be treated for the purposes of this Part of this Act as ordinarily resident anywhere in England.

7. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. The Council has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
8. Section 19 of the Care Act provides a broad power for councils to meet care and support needs in circumstances where the duty to do so (section 18) does not arise. 

What happened

9. Mr X was resident in Northern Ireland. He is a wheelchair user who has cerebral palsy and epilepsy.
10. In November 2017 the social worker from the Trust in whose area Mr X resided told the Council Mr X wanted to relocate to its area. She said he had four care calls a day with two carers at each call. The Council requested the details of his current assessment and care package. The social worker said she thought Mr X might have found a supported living placement in the Council’s area but she did not have an address.
11. In December Mr X telephoned the Council offices and said he was going into hospital. The Council says it advised him he was still under the care of the Trust. It says it advised it could not assess him until he had moved to its area.
12. In January 2018 Mr X contacted the Council again. He said he was now in a nursing home in Northern Ireland. He said he had relinquished his tenancy and his social worker had told him he had to arrange his own relocation to the Council’s area.
13. The social worker contacted the Council. She said Mr X still wanted to move to the Council’s area and he said he would move there straight from the nursing home. She said Mr X had to fund his own move as it was his choice but the Trust would support him for the first few weeks.
14. The Council told the social worker Mr X would have to find his own accommodation. It said as he was placed in a nursing home he might remain ordinarily resident in Northern Ireland according to the Care Act.
15. At the end of January the social worker told the Council Mr X was ready to move to the Council’s area, that the Trust would pay for his flights and the first six weeks of his care and he would need temporary care accommodation. She said he did not need 24-hour care.
16. In February Mr X arrived in England and went directly to a nursing home.
17. The Council assessed Mr X’s needs at the beginning of March and concluded he did not need a nursing or supported living placement. The Trust’s social worker undertook to continue funding Mr X until he found a tenancy. The Council said it would not take on a duty of care for Mr X until he was resident in the community. Mr X signed an agreement stating he understood he must pay towards the cost of his care and the Council would assess his finances. The Council asked the Trust to continue funding until suitable accommodation was found.
18. The social worker emailed Mr X in April. She reminded him he had to pay £80 a week contribution towards the cost of his care which the Trust had continued to pay until 6 April. She said the Trust had now stopped funding his care as it no longer had a legal responsibility to do so.
19. The Council agreed to pay Mr X’s care home bills on a ‘without prejudice’ basis until it had resolved the question of his ‘ordinary residence’.
20. In June the Council wrote to the Trust. It said “Despite your assessment not requiring the provision of specified accommodation your Authority made the decision to place him in ….a residential home without any recourse to Halton Borough Council.” It said as the Trust had placed Mr X in the care home, it remained responsible under the Care Act for his placement and for his funding. It did not accept Mr X was ordinarily resident in its area. It said it would consider whether to fund his placement as a matter of urgent need but would seek to recoup the cost.
21. The Council decided in July to fund Mr X’s placement on a ‘without prejudice’ basis with effect from 06 April (when the Trust had ceased funding), using its powers under the Care Act to do so.
22. The Council issued a financial assessment form to Mr X in August. He asked for help completing it. An officer visited Mr X at home on 20 September and the assessment was completed on 28 September. The amount of Mr X’s contribution towards the cost of his care was assessed at £122 a week from 06 April.
23. The Trust responded to the Council. It said Mr X had decided of his own volition to place himself in the care home on his arrival in England and therefore the Care Act did not apply in the way the Council had said. The Council responded it would now consider whether to refer the matter for arbitration.
24. Mr X complained to the Council about the amount of the assessed contribution. He said because the Council had delayed so long in carrying out the assessment or moving him from the care home he was now faced with a large bill.
25. The Council says, “At the time (Mr X) was placed by Northern Ireland in (the care home), there had been no applications made for housing and no attempt by Northern Ireland to source housing or care for him. From our involvement we identified that (he) could be supported at home but that he required an accessible property and the correct level of support. Accessible housing is often difficult to source and he was given a timescale of 12-18 months for this to be sourced by Halton Housing Trust. He was supported by a social worker to apply for housing. Once this was sourced, in November 2018, plans were then put in motion to enable him to move into this property with a care package. In the intervening time there were no alternative options available to (Mr X) as a result of his mobility problems and his own wish to live in his own tenancy.”
26. The Council responded to Mr X’s complaint. It said it had taken some time to find a suitable property for him but he had received the care (which he had agreed the contributions for) for which he was being charged. The Council said it could not waive the bill but it could agree a repayment plan.
27. Mr X complained to the Ombudsman.
28. The Council says the dispute about the responsibility for Mr X’s care in the care home remains unresolved.

Analysis

29. The Council adhered to the regulations during the dispute about Mr X’s ordinary residence. It accepted responsibility for his care pending the resolution of the dispute. There is no evidence of fault there.
30. The Trust took the decision in April that it would not fund Mr X’s care any further, although it had previously indicated it would do so until Mr X found a tenancy. There was a delay in the Trust’s subsequent responses to the Council. It was not fault for the Council to use its powers to fund Mr X’s care once it became clear the Trust would not do so. That is now a matter for the Trust and the Council to resolve.
31. Mr X had agreed to pay the assessed contribution when his care needs were assessed in February. It took some time to find a suitable tenancy because of Mr X’s specific needs. The Council has offered a repayment plan to assist Mr X. That is not evidence of fault.

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Final decision

32. There was no fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman