Summary: Mr C complains about the Council’s failure to provide him with housing and care. Mr C says the Council has not properly considered his debt for care charges and did not deal with his complaint properly. The Council is at fault for providing wrong information in its complaint response and in fettering its discretion in its assessment of charge. The Council is not at fault for failing to provide housing or care. The Council has agreed to apologise to Mr C, reconsider his assessment of charge, and review its charging policy.

The complaint

1. The complainant who I refer to as Mr C complains the Council:
• failed to meet his accommodation and support needs quickly;
• failed to deal with his complaint promptly;
• will only provide a direct payment to meet his care needs,
• has assessed a charge which is too high for him to pay so he cannot afford to have care.
2. Because of the Council’s actions Mr C says he does not have the care he needs, and has had distress, time, and trouble. Mr C says the Council also forced him to pay £1000 for a car.

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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. 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 suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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(i), as amended)

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How I considered this complaint

5. I considered written information Mr C provided and made enquiries of the Council asking it several questions and for relevant evidence. I considered:-
• Care Act 2004 and the associated Care and Support Statutory Guidance;
• complaint correspondence;
• a Council provided chronology; and
• financial assessments.
6. Mr C 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

Background information

7. Mr C has several difficulties and needs support to remain living in the community.

What should have happened

Eligibility for care services – Care and Support Statutory Guidance

8. The eligibility threshold for adults with care and support needs is set out in the Care and Support (Eligibility Criteria) Regulations 2015 (the ‘Eligibility Regulations’). The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. In considering whether an adult with care and support needs has eligible needs, local authorities must consider whether:
1. the adult’s needs arise from or are related to a physical or mental impairment or illness;
2. because of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes which include:-

1. Managing and maintaining nutrition
2. Maintaining personal hygiene
3. Managing toilet needs
4. Being appropriately clothed
5. Being able to make use of the home safely
6. Maintaining a habitable home environment
7. Developing and maintaining family or other personal relationships
8. Accessing and engaging in work, training, education or volunteering
9. Making use of necessary facilities or services in the local community including public transport and recreational facilities or services
3. because of being unable to achieve these outcomes there is, or there is likely to be, a significant impact on the adult’s wellbeing.

9. An adult’s needs are only eligible where they meet all three of these conditions.

Ordinary residence

10. Sometimes councils must 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.
11. 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.

Housing

12. Section 198 of the Housing Act says a local authority can refer an applicant to another local authority where any of the following three conditions for referral are met:-
• where the applicant has no local connection and a connection elsewhere
• up to five years after an out of borough placement
• in the two years after a private rented sector offer
13. A referral based on local connection can be made where the applicant or any person who might reasonably be expected to reside with them:
• has no local connection with the local authority to which the application was made
• has a local connection with the other local authority
• will not be at risk of violence in the other authority’s area
14. If there is no connection with the area in which the application was made, but there is a local connection with more than one other authority, then the strength of any links, along with the applicant's preference, should be considered when deciding to which authority to refer the applicant.
15. If the second authority accepts the referral, the first authority owes no further duties to the applicant as these are owed by the second.
16. The second authority is:
• subject to the relief duty
• under a duty to secure interim accommodation under section 188 if it has reason to believe the applicant may be in priority need
17. The second authority is also under a duty to assess the applicant's circumstances and housing needs and devise and review a personalised housing plan.

Charging for social care services: the power to charge

18. 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)

How to assess; Thresholds; DRE

19. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.
20. People receiving care and support other than in a care home need to keep a certain income to cover their living costs. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). The national government set and review this each year. A council can allow people to keep more than the MIG. (Care Act 2014)

Disability Related Expenditure

21. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council’s assessment should allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting.

Council complaint procedure

22. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

23. Mr C was living in supported accommodation in Council A. In January 2022 Mr C gave up his tenancy and moved to Tameside to live with friends. The Council says Mr C’s social worker from Council A said Mr C did not need 24 hour support.
24. In April Mr C contacted Tameside Council for an assessment for supported housing in Tameside. The Council advised it could not do this because it did not have a housing stock and there was no local connection with Tameside. Mr C had local connections both in Council B and Council A. Following a multidisciplinary meeting in May and after talking to Mr C the Council referred to Mr C’s preferred connection authority which was Council A. Mr C said he wanted to stay in Tameside but reluctantly agreed to the referral.
25. Council A accepted the section 198 referral and on 10 May offered Mr C emergency accommodation. It also agreed to support Mr C with long-term support and housing. The Council told Mr C he needed to look for privately rented accommodation and if he moved into a tenancy in Tameside, it would assess his support needs.
26. In June Council C provided Mr C with B&B accommodation. Another organisation then supported Mr C to move to Council B. On 18 July Mr C contacted the Council to say he was moving into Tameside in the next two weeks and asked for a care assessment.
27. The Council records it assessed Mr C’s needs on 27 July. During the assessment Mr C said he needed prompts for care but could manage. At this point Mr C was still living in Council B.
28. On 23 August Mr C contacted the Council to say he needed help with laundry, medication, and support to keep his home clean. The Council reassessed Mr C and in November offered Mr C a direct payment to pay for care. Mr C also identified a specialist Autism organisation to support him alongside his existing support services from two other organisations.
29. Mr C made a complaint to the Council on 27 November 2022. By this time Mr C had accommodation in Tameside. The Council responded on 7 January 2023. Mr C sent a response, and the Council sent a final letter on 7 February. The Council accepted several faults which includes:-
• an inaccurate decision about eligibility of care and support services. An assessment wrongly decided ineligibility even though Mr C met three of the domains. This was not picked up at the first stage complaint response. The Council agreed to ensure managers are knowledgeable about eligibility thresholds to prevent this from happening again.
• recognising the difficulties he had in getting support. This was mainly due to Mr C moving between different locations.
30. The Council apologised to Mr C and offered him £100 to recognise the upset caused by the error in assessing his eligibility.
31. The Council wrote to Mr C on 14 March 2023 assigning a new social worker from the Autism Specialist team to complete a reassessment. It referred Mr C for an advocate and sent Mr C the payment.
32. All the councils involved with Mr C have confirmed that Council A was the responsible Council for Mr C’s care until he got housing in Tameside.

Is there fault causing injustice?

Provision of housing under housing legislation

33. Mr C wanted to live in Tameside and made several attempts to move into the area without sourcing suitable accommodation. The Council was not at fault for failing to provide Mr C with housing under its housing duties. This is because it made a section 198 referral to another local authority as it considered Mr C did not have a local connection to the area. Council A accepted the referral, and it became responsible for Mr C’s housing duties. The Council acted correctly and liaised in a timely manner with the other local authorities to support Mr C get housing.
34. Mr C says because of the lack of housing provision he lost his car. It appears this is because he was not offered housing where he could park his car. As the Council was not initially responsible for Mr C’s housing, I cannot say it is at fault for any issues related to the car. Without further information about the costs incurred and the timings of the faults Mr C relies I cannot comment further on issues related to his car.

Provision of services and under the Care Act

35. The Care and Support Statutory Guidance, the “Guidance” says a Council is responsible for services for those who are ordinarily resident in their area. This is a different test to that of housing. The Guidance says that where a person has no ordinary residence the authority where they are physically present is responsible for their care needs. In this case the Council took the correct actions when Mr C presented himself as homeless in the Council’s area. It assessed Mr C’s needs, liaised with relevant authorities to meet his housing needs, and offered him advice. As soon as another council took responsibility for meeting Mr C’s housing needs the Council was no longer responsible for his care needs.
36. The Council has accepted it is at fault for failing to properly assess Mr C’s needs and not providing a service based on ineligibility. The Council offered to pay Mr C for the distress the delay caused. It also agreed a change of social worker with autism training, a reassessment, and a reminder to managers about the thresholds for eligibility.
37. I do not consider the Council’s actions caused Mr C further injustice. This is because when the Council did properly assess Mr C sometime later it did not assess Mr C as needing supported living. The Council would therefore not have been able to offer Mr C supported living.
38. There were short periods when Mr C could be considered as ordinarily resident within the Council’s area. However on balance I consider it is unlikely the Council could have provided support within those limited periods of time. There is also evidence officers were in frequent contact with Mr C offering advice and checking his welfare. Council A housed Mr C on several occasions. Mr C left this accommodation returning to Tameside knowing he had no housing. I am therefore unable to say Mr C was caused significant injustice by the Council’s errors, and further that he could have acted differently to mitigate his lack of housing and support.
39. Mr C says the Council has only offered him a direct payment to meet his needs. The Council has not commented on this, and it is unclear if this is the case as Mr C currently appears to have Council commissioned support workers.

Charging for care

40. The Council did not consider Mr C’s bank loan for his car as DRE as it said it could not consider debt. I consider the Council has fettered its discretion by having a blanket policy which does not allow officers to consider debt. This is fault.
41. Mr C has the injustice of uncertainty as he does not know whether the Council’s assessed, and potentially accrued charges are correct.

Delays in the complaint process

42. I find no delay in the Council responding to Mr C’s complaint. It sent its first response within six weeks of the complaint which spanned over the Christmas period, and its second response a month after Mr C made further representations.
43. The Council was at fault for wrongly advising Mr C about his eligibility for care. It has already accepted and apologised for misadvising Mr C in its first complaint response and taken remedial action. I consider this is suitable to remedy this part of the complaint.

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Agreed action

44. I consider there was fault in the actions of the Council which has caused Mr C injustice. The Council has agreed to take the following actions to remedy the complaint:-
45. Within one month of the final decision:
1. apologise to Mr C for the further faults I have identified;
2. properly assess whether Mr C’s loan payments should be considered as part of his assessment of charge. If it decides these payments should not be allowed provide written reasons to Mr C;
46. Within three months of the financial decision the Council should review its charging policy for non-residential care services, so it allows discretion for considering loan payments.
47. The Council should provide us with evidence it has complied with the actions above.

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Final decision

48. I consider there was fault by the Council which caused Mr C injustice. I consider the actions above are suitable to remedy the complaint and have completed my investigation and closed the complaint on this basis.

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Investigator's decision on behalf of the Ombudsman