Summary: We have not found fault in the way the Council made decisions about who was responsible for meeting Ms C’s needs.

The complaint

1. Ms B complains on behalf of her mother, Ms C, who lacks the mental capacity to make the complaint.
2. Ms B says the Council has a Section 117 aftercare duty towards Ms C and should therefore fund Ms C’s care home fees. She also says that the Council’s refusal to accept this duty led to a delay in Ms C’s discharge from hospital.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. Some of the events happened in another council’s area (Council 2). I have not investigated the actions of Council 2 as Ms B has complained about the actions of Haringey Council, not Council 2.
6. I have not investigated the actions of NHS agencies. The Local Government and Social Care Ombudsman cannot investigate the actions of the NHS as this is the role of the Parliamentary and Health Service Ombudsman.

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How I considered this complaint

7. I have spoken to Ms B and I have considered the evidence she and the Council provided as well as relevant law, policy and guidance.
8. Ms B 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

Law, guidance and policies

9. The Care Act 2014 and the Care and Support Statutory Guidance 2014 set out the Council’s duties towards adults who require care and support.
10. The Council has a duty to assess adults who have a need for care and support. 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

11. 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.
12. 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)].
13. The CASS Guidance says:
• Local authorities should 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.
• Where a person lacks the capacity to decide where to live and uncertainties arise about their place of ordinary residence, direct application of the test in Shah will not assist since the Shah test requires the voluntary adoption of a place.
• Therefore, 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.
• 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

Ordinary residence disputes

14. 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.
15. 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.
16. If, having followed the procedure set out in the disputes 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.

Section 117 aftercare

17. Section 117 of the Mental Health Act 1983 imposes a duty on councils and NHS Integrated Care Boards (ICBs) to provide free aftercare services to patients who have been detained under certain sections of the Mental Health Act.
18. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.
19. The duty to provide mental health after-care rests with the local authority for the area in which the person concerned was ordinarily resident immediately before they were detained under the 1983 Act, even if the person becomes ordinarily resident in another area after leaving hospital.
20. Although any change in the patient’s ordinary residence after discharge will affect the local authority responsible for their social care services, it will not affect the local authority responsible for commissioning the patient’s section 117 after-care.

What happened

Background to complaint

21. Ms C is an older woman who was living in supported housing in Haringey with a support package funded by Haringey Council under the Care Act 2014.
22. Ms C was taken to hospital on 28 April 2024. She was ready for discharge on 1 May 2024. An ambulance took Ms C home, but the care package had not been restarted so there was nobody waiting for Ms C when she arrived at home. The ambulance took Ms C back to the hospital.
23. On 3 May 2024 Ms B removed her mother from the hospital and moved her into her own flat which is in a different council area (Council 2). Ms B tried to obtain support from Council 2’s social care team but Council 2 decided that Ms C could not live in Ms B’s flat as it was not safe. As a result, Ms C was taken to a hospital in Council 2’s area on 4 May 2024.
24. On 9 May 2024 Council 2’s Community Healthcare team made a referral to Haringey Council as Ms C was ready for discharge from hospital.
25. Haringey Council rejected the referral on 20 May 2024. The Council said Ms C had delirium and a grade 3 pressure sore and therefore had to be referred either via the delirum pathway or a step-down bed to deal with the pressure sore (NHS funded).
26. On 23 May 2024 Council 2’s Community Healthcare team made a referral to the Health NHS Trust for a pathway 3 health bed.
27. Haringey Council reviewed Ms C’s care plan on 8 June 2024. The Council said Ms C would require two carers to attend at her home for four 45-minute visits.
28. Health NHS Trust rejected Council 2’s referral on 13 June 2024. It said it had assessed Ms C and said Ms C did not have a health need and her needs could be met by social care.
29. A referral was made to Council 2’s Integrated Discharge Team on 12 July 2024 and Council 2 assessed Ms C’s needs and provided a care plan. Council 2’s assessment assessment dated 17 July 2024 noted that Ms C’s mobility had increasingly reduced and she now had almost complete loss of mobility. Ms C required care and support throughout the day and night and the care plan was for Ms C to move to a care home in Council 2’s area.
30. The hospital wrote a discharge report for Ms C on 28 October 2024 as Ms C was ready for discharge from hospital.
31. On 29 November 2024 Ms B obtained Ms C’s previous health records from the NHS which showed that Ms C had been detained under the Mental Health Act. She sent the records to Council 2.
32. On 6 January 2025 the NHS’s mental health team confirmed that Ms C had been detained under Section 3 of the Mental Health Act in 1997.
33. On 8 January 2025 Council 2 wrote to the NHS Foundation Trust and said Ms C was entitled to Section 117 aftercare so therefore she was the responsibility of NHS Foundation Trust in the Haringey area.
34. The NHS Foundation Trust replied and said that it was not responsible for adult social care so it would forward the email to Haringey Council. It also said that Ms C would need a Section 117 aftercare plan and this should be written by the hospital in Council 2’s area as the hospital was aware of Ms C’s current needs.
35. Haringey Council replied to Council 2 on 24 January 2025 and said it could not accept responsibility under Section 117 and asked Council 2 to provide:
• Evidence of Ms C’s section 117 aftercare entitlement.
• Evidence that Ms C resided in Haringey before the section 3 detention.
• If evidence was found that Ms C had a section 117 after care plan, confirmation that the plan had not been discharged.
36. It said that, in the meantime, Council 2 should carry out an assessment of Ms C’s needs and provide her with a care plan, on a ‘without prejudice’ basis, to avoid delay. The Council said Council 2 had a duty under the Care Act 2014 to support Ms C’s needs as she was ordinarily resident in Council 2.
37. Council 2 agreed on 29 January 2025 to assess Ms C and to provide her with temporary support, on a ‘without prejudice’ basis.
38. Ms B complained to the Council on 12 February 2025 and said Ms C needed nursing care and should move to a nursing home. The Council had a duty under Section 117 of the Mental Health Act to fund her placement in a nursing home and this should be done without further delay.
39. The Council replied to Ms B on 17 February 2025. The Council accepted that it held a Section 117 aftercare duty for Ms C and said the hospital should make a referral to the Council and the Council would assist in finding a placement for Ms C. Council 2 sent copies of its assessments of Ms C to Haringey Council.
40. Ms B complained to Haringey Council on 25 February 2025 about the delay in the Council’s response and continued to chase the Council. Ms B contacted the Council on 5 March 2025 as it said Ms C had lost her place at a nursing home that she could have moved to.
41. On 7 March 2025 the hospital sent a referral/request to Haringey Council for an assessment of Ms C as she was ready for discharge.
42. The Council refused the hospital referral. It said Ms C’s needs for care and support related to care needs under the Care Act 2014 and, as she was ordinarily resident in Council 2’s area, she was therefore Council 2’s responsibility. Haringey Council was in the process of determining whether Ms C had any needs that should be met under Section 117 aftercare. The Council informed Ms B of its change of position on 19 March 2025.
43. Ms B complained to the Council on 20 March 2025 and said the Council had previously agreed that it would take responsibility to fund Ms C’s care package as part of Section 117 aftercare, but then declined the referral for Ms C from the hospital without good reason.
44. Ms B’s solicitors wrote to the Council on 28 March 2025 asking for full disclosure of all the assessments regarding Ms C’s section 117 aftercare entitlement.
45. The Council replied to Ms B on 28 March 2025 and said Ms C was ordinarily resident in Council 2 as she had voluntarily relocated to Council 2’s area. Therefore Council 2 was responsible for meeting her care needs. The Council was still going through the records to find out if Ms C had any section 117 entitlement.
46. Ms C was discharged from hospital on 2 April 2025 and moved to a care home in Council 2’s area, funded by Council 2.

Further comments

47. I asked the Council whether the hospital informed the Council of Ms C’s proposed discharge from hospital on 1 May 2024. The Council said the hospital did not inform the Council of the proposed discharge.
48. I noted that Haringey Council had no notes or records for Ms C relating to the time between June and October 2024 so it was not clear what happened during that time. I asked Council 2 to send me any emails or communications records between Council and Haringey Council for the time between June to October 2024. Council 2 replied and said there were no records.
49. I asked whether Haringey Council was aware of any current Section 117 support plan for Ms C. The Council said it was not, but accepted that the ICB may have a plan. Either way, it pointed out that Ms C’s needs had been assessed as eligible needs under the Care Act, not as part of a Section 117 after care plan.
50. I asked Haringey Council what Council 2’s current position was. The Council said Council 2 confirmed on 27 March 2025 that it would fund Ms C’s discharge from hospital into a care home and had been funding Ms C’s care since then.
51. The Council’s legal team said it had not received any correspondence from Council 2’s legal team. So the Council concluded that Council 2 had accepted its responsibility to meet Ms C’s needs under the Care Act.
52. I asked Ms B about the decision to move Ms C to Council 2. Ms B said that, when Ms C was initially discharged from hospital on 1 May 2024, Haringey Council had failed to reinstate the care package which is why Ms C was returned to the hospital. Ms B said there were no beds available for Ms C in the hospital so she remained in the A&E area for several days. Ms B then removed Ms C from hospital and took her home with her with the plan to care for her at home, but she was unable to do so and Ms C was taken to hospital.
53. Ms B said she wanted Ms C to stay in a care home in Council 2. Ms B said that Ms C had no links to Haringey apart from her lease on the flat. It made sense for Ms C to move closer to Ms B so that she could visit her more easily. Ms B did not want Ms C to move to a care home in Haringey.

Analysis

54. I have explained to Ms B that the Ombudsman cannot settle ordinary residence disputes as only the Secretary of State can do so. In any event, it appears, from the evidence I have seen, that Council 2 has accepted that it has a duty to meet Ms C’s needs under the Care Act and the matter was never escalated to a dispute.
55. Ms B complained that the Council failed to put in place the required care package on 1 May 2024 when Ms C was ready for discharge from hospital in Haringey. I agree that the care package should have been restarted but the Council has said that the hospital did not inform the Council on the imminent discharge on 1 May 2024 so I cannot say it was the Council’s fault not to reinstate the care package.
56. In terms of Ms C’s stay in the hospital in Council 2’s area, I note that there was an initial delay of a few weeks as Council 2 made a referral to the Health Trust to determine whether Ms C was eligible for NHS funding because of her health needs, but the ICB said Ms C was not eligible for NHS funding.
57. It is not clear what happened between June and October 2024. Council 2 accepted responsibility for Ms C’s care in July 2024 and completed her care plan. I do not know why Ms C remained in hospital until October 2024. However, it is clear there was no communication between the two councils so at this stage. It appears that there was no dispute between Haringey Council and Council 2 about whose responsibility Ms C was at this stage.
58. The dispute started in November 2024 after Ms B informed Council 2 that Ms C had been detained under the Mental Health in 1980’s and 90’s and may therefore be eligible for Section 117 aftercare.
59. I note that Council 2 accepted in January 2025 that it would fund Ms C’s care on a temporary basis until a permanent decision was made on who was responsible for Ms C’s funding, so I do not know why Ms C did not move out of hospital at that stage.
60. There was then months of emails between the two councils to determine what the position was. In the end, the councils agreed that Ms C’s needs were being met under the Care Act, not as part of a Section 117 aftercare plan and therefore Council 2 was responsible for meeting Ms C’s needs. I note that both councils assessed Ms C’s needs and noted that she had eligible needs under the Care Act so I find no fault in that respect.
61. I accept Ms B’s point that, in theory, Ms C may have been eligible for Section 117 as she had been detained under the relevant Mental Health Act sections in the past. However, both councils agreed that the needs that were currently being met were not being met as part of a Section 117 care plan (to avoid re-admission to hospital under the Mental Health Act) but under the Care Act. So overall I find no fault in the way the Council made this decision.

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Decision

62. I have completed my investigation and have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman