Summary: Mrs X complains the Council failed to provide her with proper information about who was responsible for paying her mother, Mrs Y’s care home fees when she moved out of the Council’s area. Mrs X also complains the Council delayed carrying out an assessment of her mother’s social care needs. We found fault because the Council failed to provide this information. The Council also delayed carrying out an assessment on Mrs Y which would have revealed much sooner it considered the responsibility for funding Mrs Y was for another council. The Council has proposed a suitable remedy in this case and so we are completing our investigation.

The complaint

1. The complainant whom I shall refer to as Mrs X complains the Council failed to assess her mother, Mrs Y’s care needs, undertake a financial assessment and complete a support plan. Mrs X says the Council did not give her any proper information who would be responsible for Mrs Y’s fees when she moved to a care home out of the borough. Mrs X says because of this Council’s failure to consider or accept responsibility for Mrs Y’s placement she has paid out most of her savings in care fees causing upset and worry.
2. Mrs X also complains a social worker re arranged the assessment appointment on Mrs Y and later cancelled it. Mrs X says this caused them distress as they had waited four months for the assessment.

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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. 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 have read the papers submitted by Mrs X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
5. Mrs 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

Assessments

6. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support.
7. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.

Ordinarily Residence

8. The Care and Support Statutory Guidance (Department of Health, October 2014) says a Council is only required to meet the needs in respect of an adult who is ‘ordinarily resident’ in their area. Ordinarily resident is a key test which needs to be met to establish whether a Council is required to meet a person’s eligible needs. So, it is crucial that a Council establishes at the appropriate time whether a person is ordinarily resident in their area and whether a duty arises.
9. There is no definition of “ordinary residence” in law, but chapter 19 of the Guidance says the term should be given its ordinary and natural meaning subject to any interpretation by the courts.
10. 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 said:

‘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.’

11. 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.
12. There may be some cases where the local authority considers it proper for the person’s care and support needs to be met by providing accommodation in another authority area. Section 39 of the Care Act and the regulations set out what should happen in these cases, and specify which local authority is responsible for the person’s care and support when the person is placed in another authority’s area. The principle is the person placed ‘out of area’ is deemed to continue to be ordinarily resident in the first or ‘placing’ authority area, and does not get an ordinary residence in the ‘host’ or second authority. The local authority which arranges the accommodation, therefore, retains responsibility for meeting the person’s needs.
13. Section 19.15 of the care and support guidance says local authorities must always have regard to the Shah 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 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.

Ordinary residence disputes

14. 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. 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.

What happened

15. Mrs Y went into hospital in May 2019 following a fall at her home. In June 2019, the Council’s hospital social worker assessed Mrs Y’s care and support needs. Mrs Y wanted to move into residential care as she was frightened to return home in case she fell again. Mrs X discussed this with the social worker and confirmed Mrs Y’s assets were over the limit for Council funding. The Council noted Mrs X was aware Mrs Y would be self-funding her stay in the care home.
16. Based on the decision made by Mrs Y to move into residential care the social worker did not carry out a financial assessment or a care and support plan. The social worker closed Mrs Y’s case and told Mrs X to contact social services when Mrs Y’s savings were near or below the threshold for Council support.
17. Mrs Y through Mrs X approached a care home I will call Beech House and arranged an assessment with the home. The Council had no involvement in arranging Mrs Y’s care. Beech House was in a neighbouring council’s area I will refer to as Authority Z.
18. Mrs X contacted the Council on 11 June 2019 to say Mrs Y was moving to Beech House. Mrs X asked for advice about what to do when Mrs Y’s funds fell below the financial threshold and she qualified for local authority funding. The Council said as Mrs Y was self-funding, had capacity and chosen to move to Authority Z’s area she would need to contact Authority Z as now ordinarily resident there. The Council advised Mrs X to approach Authority Z’s social services and gave her relevant contact details to do so.
19. On 17 July 2019 Mrs X contacted the Council again. Mrs X said Mrs Y’s savings had fallen below the financial threshold and wanted to refer her for a social care assessment. Mrs X said Mrs Y lacked capacity when she moved to Authority Z’s area. This information conflicted with the information given by Mrs X in June 2019. The Council says based on this information it agreed to carry out an assessment of Mrs Y’s care and support needs and placed her on its waiting list.
20. During 13 August to 21 October 2019 Mrs Y’s family contacted the Council seven time to ask about the assessment and reported Mrs Y’s savings were reducing. The Council advised the family on each occasion it had referred Mrs Y for an assessment and waiting times were currently four months. The Council considers assessment requests according to its allocation guidance and prioritises them due to risk. It considered Mrs Y’s care and support needs were being met during those months as she was in a residential home. This meant it had not prioritised her as needing an urgent assessment.
21. On 5 November 2019, the Council allocated Ms Y’s case to a social worker to complete an assessment. The social worker arranged the assessment for 6 November 2019. On the day of the assessment the social worker read Mrs Y’s case notes and hospital assessment of 8 June 2019. This showed Mrs Y had capacity to make decisions when she move to Beech House so was ordinarily resident in Authority Z’s area (so it would be for Authority Z to do the assessment). The social worker contacted Mrs X and re arranged the assessment for later in the day.
22. The social worker made several calls to Authority Z to request an assessment and ensure it was followed up. Authority Z confirmed Mrs Y was on its waiting list for an assessment. The social worker contacted Mrs X to advise Mrs Y had become ordinarily resident in Authority Z of her own accord and she needed to ask Authority Z to carry out a social care assessment for Mrs Y.
23. Mrs X said she had called Authority Z in July 2019 after being told by the Council Authority Z was responsible. But Authority Z told her the Council was responsible and that was why she had made contact again for an assessment in July 2019.
24. The social worker told Mrs X Authority Z had accepted care responsibility for Mrs Y and would be assessing Mrs Y. The social worker advised the Council was closing its case and it would not carry out an assessment. The Council says the social worker rearranged the appointment as she did not want to cancel it until she had confirmed that Authority Z had a referral for Mrs Y and planned to assess her.
25. The Council considers Authority Z agreed to take responsibility for local authority funding when Mrs Y’s savings fell below the social care funding threshold. And both Councils agreed that this was the appropriate arrangement for the situation, a position supported by the Care and Support statutory guidance relating to ordinarily residence.

Mrs X’s complaint to the Council

26. Mrs X complained to the Council in December 2019 about the lack of information, the confusing situation, and the delay in advising it would not do an assessment. Mrs X also raised concerns about the cancelled appointment in November 2019 for the assessment. Mrs X considered Mrs Y had paid care home fees she did not need to.
27. In its response the Council accepted it should have provided information to Mrs X in June 2019 during the assessment at the hospital about out of borough placements, the remit of ordinarily residence and the responsibilities of Authority Z in assessing Mrs Y’s future care and support needs, including financial assistance with her placement. Although the Council did provide Mrs X with this information in a later telephone call on 11 June 2019.
28. The Council also accepted the duty team in July 2019 should have explored Mrs Y’s history in more depth at the time of the referral. This would have noted the hospital social worker’s evidence Mrs Y had capacity. So, her move to Authority Z transferred her ordinarily residence to that council making it responsible for meeting any future eligible needs. The Council said if it had looked at the information then it would not have placed Mrs Y on the assessment waiting list and officers would have told Mrs X to contact Authority Z again.
29. The Council apologised to Mrs X. It offered her a £500 time and trouble payment in recognition of the lack of information provided and the delay caused by placing Mrs Y on the waiting list between July and November 2019. The Council acknowledged this gave an expectation she would receive an assessment from the Council rather than referring her to Authority Z at that point.
30. The Council advised Mrs X to discuss any repayment of care home fees with Authority Z.

Recent events

31. Sadly, Mrs Y passed away in February 2020 while on the waiting list at Authority Z for an assessment. Mrs X has also raised concerns about events regarding Mrs Y and the care home fees with Authority Z.

My assessment

32. The Council accepts it should have provided more information to Mrs X while at the hospital assessment of Mrs Y in June 2019 about out of borough placements and the implications of Mrs Y’s move into Authority Z’s area. The Council has included the failure to provide information as part of its apology and offer of a time and trouble payment.
33. The Council did later advise Mrs X to contact Authority Z when Mrs Y’s savings fell to the local authority threshold as it considered she was ordinarily resident in Authority Z’s area. This was due to Mrs Y deciding to move into that area for residential care. Mrs X did contact Authority Z but, unfortunately, advised to contact the Council for an assessment.
34. The Council accepts when Mrs X contacted it again in July 2019 it should have considered the information in more depth rather than place Mrs Y on the waiting list for an assessment. The Council says if it had checked Mrs Y’s information it would have found out she was ordinarily resident in Authority Z’s area then and told Mrs X to contact Authority Z again.
35. Instead as Mrs Y was placed on the Council’s waiting list it was four months before the Council checked Mrs Y’s information. I acknowledge the Council prioritises cases and considered Mrs Y low risk as she was in a residential care home. And while the regulations do not specify a timescale to carry out an assessment, we would generally expect it a council to do it within 30 days of the referral.
36. So, I consider the Council’s waiting time of four months to carry out an assessment is too long and therefore fault. The delay in placing Mrs Y on the assessment waiting list caused an injustice to Mrs X and Mrs Y due to the distress and worry over Mrs Y’s decreasing savings. If the Council had carried out the assessment sooner, it would have realised the situation with Mrs Y’s ordinarily residence and referred the case to Authority Z much sooner.
37. If there two councils were disputing responsibility for Mrs Y, then the issue could have been referred to the Secretary of State to resolve.
38. Mrs X raised concerns about the social worker’s actions to rearrange and then cancel the assessment. I appreciate this was upsetting for Mrs X and Mrs Y. However, I consider the actions were taken in good faith by the social worker to ensure Authority Z received and accepted the referral before contacting Mrs X and Mrs Y. I do not consider there are grounds to pursue this issue any further.
39. The Council has investigated and responded to Mrs X’s concerns. It apologised to Mrs X for the lack of information, the delay of four months from July to November 2019 and offered a time and trouble payment of £500. I consider this is suitable action for the Council to take to remedy the injustice caused. I do not consider I can achieve anything further for Mrs X.

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Final decision

40. I am completing my investigation. There was fault by the Council as it failed to provide Mrs X with proper information about who was responsible for paying Mrs Y’s care home fees as she moved out of its area. The Council also delayed carrying out an assessment on Mrs Y which would have reveal much sooner it considered the responsibility for funding Mrs Y was with another council. The Council has proposed a suitable remedy in this case.

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Investigator's decision on behalf of the Ombudsman