Summary: Mrs X complained on behalf of her relative, Mr Y. She complained the Council told her Mr Y would be entitled to a 12-week disregard when he became a care home resident. It later decided he was not entitled to the disregard because the care home was in a different area. Mrs X said this frustrated her and impacted Mr Y financially. We have discontinued our investigation because further investigation would not lead to a different outcome.

The complaint

1. Mrs X complained on behalf of her relative, Mr Y. She complained the Council told her Mr Y would be entitled to a 12-week disregard when he became a care home resident. It later decided he was not entitled to the disregard because the care home was in a different area. Mrs X said this frustrated her and impacted Mr Y financially.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I read Mrs X’s complaint and spoke to her about it on the phone.
4. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
5. Mrs X and the Council had an opportunity to comment on a draft decision. I considered their comments before making this final decision.

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What I found

Background information

6. Sometimes councils have to decide between themselves which organisation has to meet someone’s eligible care needs under the Care Act 2014. They do this by deciding where the person is ‘ordinarily resident’. 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 said this means where someone normally lives “as part of the regular order of [their] life, for the time being, whether of short or long duration” [Shah v London Borough of Barnet (1983)]. Where doubts arise about a person’s ordinary residence, it is usually possible for councils to decide that the person has been 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 says a council must meet the eligible needs of people if they are present in its area but are of no settled residence. In this regard, people who have no settled residence, but are physically present in the council’s area, should be treated in the same way as those who are ordinarily resident.
8. There may be some cases where a council considers it proper for the person’s care and support needs to be met by providing accommodation in another council area. Section 39 to 41 of the Care Act and the regulations set out what should happen in these cases. They specify which council is responsible for the person’s care and support when they are placed in another council’s area. The principle is the person placed ‘out of area’ is considered to continue to be ordinarily resident in the first or ‘placing’ authority area and so does not get an ordinary residence in the ‘host’ or second authority. The council which arranges the accommodation, therefore, keeps responsibility for meeting the person’s needs.
9. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings.
10. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

11. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or, in certain circumstances, the resident is willing and able to pay the additional cost. This is called a ‘top-up’. But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.
12. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
13. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:

• the person can find someone else (a ‘third party’) to pay the top-up; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.

14. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.
15. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
16. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
17. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
18. If a Council assessed a resident in a care home had to pay the full cost of their residential care because they own a property and had savings of less than £23,250 it should disregard the property for the first 12 weeks. This allows time to sell the property. I refer to this as the 12-week disregard.

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Mr Y lived on his own and owned his home. He was admitted to hospital in March 2025 following a fall.
21. The hospital decided Mr Y was medically well enough to go home the following week. Mrs X said he was not safe to go home on his own.
22. Mr Y fell in hospital at the start of April 2025. Mrs X decided to place him in a care home close to her home, in the neighbouring council area. Mr Y funded this placement costing £1,800 per week. Mrs X noted this was for respite to support Mr Y’s mental and physical health.
23. The Council completed the care act assessment the following week. The Council told Mrs X, in an email, if it placed Mr Y in the care home permanently, it would fund the 12-week disregard. This would be based on the best value of a local care home and Mr Y paying a top up as any assessed contribution.
24. The Council contacted Mrs X at the start of May 2025. The Council confirmed it had four offers from different care homes. The cost of these placements started at £1,100 per week. Mrs X told the Council she wanted it to place Mr Y in the care home permanently. She said she understood Mr Y would fund this until his funds reduced after he sold his home.
25. The Council considered Mr Y’s case a week later. The Council decided, as Mr Y’s family had placed him in the care home, not the Council, he was an ordinary resident of the neighbouring council. It told Mrs X it did not have a responsibility to pay the 12-week disregard. The Council told Mrs X she should approach the other council.
26. Mrs X complained to the Council at the end of May 2025. She complained the Council was not paying the 12-week disregard. The Council acknowledged the complaint in June 2025.
27. The Council responded to the complaint in July 2025. The Council stated Mrs X decided to place Mr Y in the care home and he would fund the placement. It said as the home was not in its area, and it did not place Mr Y, he would be an ordinary resident of the other council. The Council said it would not fund the 12-week disregard.
28. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to fund the 12-week disregard.
29. Since approaching the Ombudsman the Council referred Mr Y to the other council. The other council said when Mr Y moved to the home, he was an ordinary resident of the Council, so it would not pay the 12-week disregard.
30. In response to my enquiries the Council stated it had agreed to fund the 12-week disregard and had made the payments to the care home.

My findings

31. I am discontinuing my investigation. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating or further investigation would not lead to a different outcome.
32. Our role, if we find fault, is to make recommendations to try to put the person in the position they would have been in, had the fault not occurred. In this case, it would be considering if the Council should pay the 12-week disregard. As the Council has now paid the 12-week disregard, Mr Y is in either the same, or a potentially better, position than if the error had not happened. Consequently, we are satisfied with the steps the Council has already taken.

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Decision

33. I have discontinued my investigation because further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman