Summary: We found there was no fault by Surrey County Council concerning their decision not to backdate care fee funding beyond April 2025.

The complaint

1. Ms Y says her mother (Mrs X) was ordinarily resident in the Council’s area from early 2024. She complains the Council unreasonably declined to backdate care funding for her mother’s care to the date that her savings dropped below the £23,250 threshold. This has caused great stress to the family and left an outstanding care fees debt.

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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 recommend 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(1), as amended)

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What I have and have not investigated

4. Ms Y’s complaint concerns the actions of Surrey County Council. We have established some of the actions of East Sussex County Council in order to understand the background, but we have not investigated what it has done.
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply to it.

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How I considered this complaint

6. I considered evidence provided by Ms Y and the Council as well as relevant law, policy and guidance.
7. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Care and Support Statutory Guidance

Charging for social care services: the power to charge

8. A council has a duty to arrange care and support for someone when it appears to the council that they have eligible needs. It can meet needs within care homes or in other places. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17).
9. There is a financial limit, known as the ‘upper capital limit’, which exists for the purposes of carrying out a financial assessment. This sets out at what point a person is entitled to access local authority support to meet their eligible needs. The upper capital limit is currently set at £23,250. Below this level, a person can seek means-tested support from the local authority. 

The 12-week property disregard

10. An important aim of the charging framework is to prevent people being forced to sell their home at a time of crisis. The regulations under the Care Act 2014 therefore create space for people to make decisions. This means, for the purposes of establishing if someone is eligible for financial support, a local authority must disregard the value of a person’s main or only home in its assessment of their finances for 12 weeks when they first enter a care home as a permanent resident.
11. A local authority may place a person in a care home in the area of another local authority, for example because they have expressed a desire to be near family members. However, the placing authority remains the responsible authority during the 12-week disregard period.
12. At the end of 12 weeks, the value of the person’s home is taken into account (unless it is subject of an alternative disregard, for example the property is occupied by a qualifying relative). Taking account of the value of the home may result in the person becoming liable to pay for all of the costs of their care. They may then choose to enter into a private contract with the care home for the provision of their care on a permanent basis, rather than continuing to be provided with accommodation by their placing authority. In such a case the person would be likely to acquire an ‘ordinary residence’ in the new area, in line with the case law.
13. There is no definition of ordinary residence in the Care Act, therefore, the term should be given its ordinary and natural meaning. 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)].

Deferred Payment Agreements (DPAs)

14. A deferred payment agreement is an arrangement with a local authority which helps delay the sale of someone’s home to pay care fees. Essentially, a local authority will pay an agreed part of someone’s care fees and recover the debt that builds up over time when the person’s house is sold. The Council will place a legal charge on the property to secure the debt.
15. The care and support statutory guidance states that information about deferred payment agreements should be offered when a person approaches a local authority, or at the time they enter care home accommodation. Where a person is initially accommodated under the 12-week property disregard, the information should be given and arrangements made during this 12-week period.
16. Where someone is ordinarily resident in the area of local authority A, but chooses to live in a care home in the area of local authority B, and the value of that person’s home is being disregarded for 12 weeks, local authority A should offer the person the option of having a deferred payment during the 12-week period. If the person accepts the offer and enters into a deferred payment agreement, local authority A will remain responsible for funding their care (minus any contributions from means-tested income and assets).

What Happened

17. Mrs X originally lived in East Sussex. In February 2024, at her request, East Sussex County Council placed her in Care Home A in Surrey to be nearer to her daughter.
18. As at February 2024 Mrs X had savings just over the £23,250 threshold for receiving local authority financial assistance. She also had a share in a property. East Sussex County Council placed her in Care Home A under a 12-week property disregard. It funded her care once she fell below the threshold of £23,250, with Mrs X also making a contribution.
19. The 12-week disregard period ended in May 2024. On 18 June 2024 Mrs X’s daughter applied to East Sussex County Council for a deferred payment agreement (DPA). This was considered but declined on 2 July 2024. This was due to complications about the property deeds which prevented the Council from applying a charge to the property.
20. East Sussex County Council wrote to Mrs X setting out its decision. It suggested that she update her care provider. It stated it could not offer financial advice but stated she may wish to speak to an adviser who was accredited by the Society of Later Life Advisers (SOLLA).
21. I understand Mrs X signed a private contract for her care with Care Home A at some point following the end of the 12-week disregard and East Sussex County Council’s decision to decline a DPA.
22. Ms Y told us that due to the shared ownership of the property and other issues, the property sale was complicated and it took some time to deal with. In the meantime they were only able to meet some of Mrs X’s care fees, and a care fee debt of around £49,000 built up with Care Home A.
23. The property sold in April 2025. Soon afterwards Ms Y contacted East Sussex County Council seeking a further financial assessment and financial support from the point her mother’s assets dropped below £23,250. East Sussex County Council told Ms Y that her mother became ordinarily resident in Surrey at the end of the 12-week property disregard.
24. Ms Y contacted Surrey County Council on 23 April 2025. Surrey County Council carried out an assessment of Ms Y’s needs and a financial assessment was completed in June 2025. The Council agreed to fund her care placement, backdated to 25 April 2025, the date Ms Y contacted them.
25. Ms Y paid Care Home A around £29,000 from the house sale, paying care fees up to 9 January 2025. This left her mother with exactly £23,250 remaining. However, this meant Mrs X’s care fees remained unpaid between early January 2025 and 25 April 2025. I understand the outstanding care fees amounted to approximately £20,000.
26. Both Care Home A and Ms Y made representations to Surrey County Council, asking it to fund care fees from 9 January.
27. Surrey County Council’s response to their correspondence and a subsequent complaint noted the background and actions of East Sussex County Council. Surrey County Council stated it had no contact with either the care home or Ms Y prior to her contact with them in April 2025. It was not therefore aware of Mrs X or aware that she had care and support needs. The Council stated when it was made aware it accepted Mrs X was ordinarily resident in Surrey and she had care and support needs and it assumed responsibility for her place at Care Home A.
28. The Council noted that the Care Act 2014 does not place a duty on the Council to fund care for someone when their funds drop below the £23,250 threshold, but rather, when they become aware of the person and their needs. The Council agreed to meet Mrs X’s care fees from April 2025 when it became aware.
29. The Council stated that, while Mrs X was within the 12-week property disregard period, she was considered ordinarily resident in East Sussex. As a deferred payment agreement was not entered into and Mrs X remained at the care home in Surrey, she became ordinarily resident in Surrey. The Council stated an approach to the Council was needed to inform them of Mrs X’s need for support. The Council did not become responsible for her funding until it was made aware she was resident in the area and in need of care and support. The Council apologised that Ms Y found the council’s correspondence dismissive and unsympathetic. However, it did not agree it was responsible for Mrs X’s care prior to April 2025.

Was there fault by Surrey County Council

30. We have not investigated the actions of East Sussex County Council. However, we have considered the background events prior to April 2025 when Surrey County Council’s involvement with Mrs X began. This is because our investigation concerns whether there was fault in Surrey County Council’s decision to only begin funding Mrs X’s care in April 2025, rather than from an earlier date.
31. When Mrs X was first placed in Care Home A by East Sussex Council, it is clear from the care and support statutory guidance that she remained ‘ordinarily resident’ in East Sussex. As such East Sussex were initially responsible for the care fees. Mrs X was afforded a 12-week property disregard by East Sussex. The guidance states that following this period, if East Sussex had agreed a Deferred Payment Agreement (DPA) for her, they would have retained responsibility for funding her care.
32. Unfortunately, Mrs X’s circumstances were complex and a DPA was not possible. Because no DPA was in place, after the 12-week period, Mrs X became responsible for the full cost of her care. This was because, from that point, she had assets over the threshold of £23,250.
33. At the point thet Mrs X decided to remain in Care Home A, as we understand it under a private care contract, she became ‘ordinarily resident’ in Surrey.
34. While Mrs X was ‘ordinarily resident’ in Surrey at that point, Surrey County Council were not aware of her residence or her care and support needs.
35. A council’s duty to assess someone, and meet eligible care needs begins when it appears to a council that someone may have care needs. In Mrs X’s case, Surrey County Council became aware of Mrs X’s care needs when they were contacted by Ms Y in April 2025. We found no evidence that the Council were aware of Mrs X and/or her care needs prior to this.
36. Difficulties caused by the shared ownership of Mrs X’s property and an issue with the title deeds meant that it took a considerable time to sell it. During this time, outside of the 12-week property disregard, Mrs X had assets over £23,250 and she was considered a full cost fee payer. Between May 2024 and April 2025 when the property was sold, she built up a care fee debt. While this was clearly a difficult and stressful time for Mrs X and Ms Y, councils are not obliged to meet care fees that have been incurred prior to them having knowledge of the person concerned. As a result, I have no grounds to question the Council’s decision not to fund care fees prior to April 2025.
37. For the reasons set out above, I found there was no fault by Surrey County Council.

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Decision

38. I find no fault by the Council.

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Investigator's decision on behalf of the Ombudsman