Summary: Mr B complained that the Councils said he was not eligible for a supported housing development. We have found fault in the way the Council assessed Mr B’s needs, the failure to properly record the eligibility criteria for the housing development and the Council’s communications about the criteria. The Council has already provided a financial remedy for the distress caused to Mr B by the fault and has amended the eligibility criteria. The Council has also agreed to apologise to Mr B and to carry out a service improvement.

The complaint

1. Mr B complains the Council:
• Did not properly consider his application for a supported housing development and changed the eligibility criteria for development because of his complaint.
• Failed to properly assess his needs for care and support.

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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 suggest 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(i), as amended)

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How I considered this complaint

4. I have discussed the complaint with Mr B. I have considered the evidence provided by Mr B and the Council, the relevant law, policy and guidance and both sides’ comments on the draft decision.

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What I found

Law, policies and guidance

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 set out the Council’s duties towards adults who require care and support.

Assessment of needs and care plan

6. The threshold for eligibility is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how these impact on their wellbeing. Councils must consider whether:
• The adult’s needs arise from a physical or mental impairment or illness.
• As a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes.
• As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
7. The outcomes are:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Being able to make use of the home safely
• Maintaining a habitable home environment
• Developing and maintaining family or other personal relationships
• Accessing and engaging in work, training, education or
• Making use of necessary facilities or services in the local community
• Carrying out caring responsibilities for a child.

Needs met by a carer

8. In considering the person’s needs and how they may be met, the local authority must take into consideration any needs that are being met by a carer.
9. Provided the carer remains willing and able to continue caring, the local authority is not required to meet those needs. However, the local authority should record the carer’s willingness to provide care and the extent of this in the plan of the person and also the carer, so that the authority is able to respond to any changes in circumstances (for instance, a breakdown in the caring relationship) more effectively. 

What happened

Background

10. Mr B’s mother, Mrs C, had a medical emergency in 2020 which resulted in physical and cognitive disabilities. Mr B became Mrs C’s full time-carer and provided care from Friday to Thursday, sleeping over at Mrs C’s home every night. Mr B’s sister took over the care on Thursday evening until Friday.
11. There was a Council funded supported housing / extra care housing development near Mrs C (development K). Mr B applied for a bungalow at development K in May 2023, but his application was declined.
12. Mr B complained to the Council about this decision and then took his complaint to the Ombudsman. The Ombudsman decided in September 2023 that the Council had not completed its assessment of Mr B’s needs for care and support in accordance with the CASS Guidance. The Council agreed to carry out a further assessment of Mr B’s needs for care and support.

Care Act Assessment September 2023

13. The social worker carried out the assessment of Mr B’s needs for care and support on 27 September 2023.
14. The assessment noted that Mr B had mental health issues (depression and anxiety). He also was underweight and had some medical issues with his stomach.
15. Mr B said his mental health problems and his stomach issues all started after he became Mrs C’s full-time carer. Mr B felt ‘he did not have a life’. He said he could not go back to his own home as he was suffering anti-social behaviour at his property and this caused him more anxiety and stress. He asked whether he could be re-considered for development K. Development K was nearer Mrs C’s home and the flats were wheelchair accessible so it would allow Mr B to take Mrs C to his home during the day, giving him a break from being at Mrs C’s home all the time.
16. Mr B’s sister said she was very worried about Mr B as he was neglecting himself. Mr B’s sister said she rang Mr B during the day to prompt him to eat or change his clothes as he would not do this without her.
17. The social worker noted the following:
• Managing and maintaining nutrition. Mr B was able to prepare a meal and eat independently, but chose not to eat. It was noted that Mr B was very thin. His GP had prescribed medication and nutritional drinks to encourage Mr B to put on weight. Mr B said his mental health issues were impacting on his physical wellbeing. Mr B said his sister bought all the food and made the main meals for him and Mrs C.
• Managing personal hygiene. Mr B said he lacked motivation and felt he neglected himself. He said his sister sometimes reminded him to change his clothes. Mr B said he broke his nose and had black eyes after he fell trying to have a bath. The social worker concluded that Mr B had no eligible needs in this area but that he sometimes neglected himself due to anxiety, stress and feelings of low self-worth.
• Managing toileting needs. Mr B said he was independent with toileting but had had some incidents of incontinence. Mr B said this was linked to the stress and anxiety associated with his poor mental health.
• Being appropriately clothed. Mr B was able to get dressed.
• Being able to make use of your home safely. Mr B said he did not feel safe in his own flat because of intimidation by drug users nearby.
• Maintaining a habitable home environment. Mr B said his sister provided all the cleaning. He said he lacked motivation to clean. He said his mental health had an impact on this and left him weak and vulnerable.
• Family and personal relationships. Mr B said he lacked the confidence to meet new people because of his poor mental health and not feeling safe. Mr B wanted to be rehoused away from the people who were causing him mental harm. Mr B said he could not accept support until the cause of his anxiety and depression had been addressed and he had been rehoused away from the people who caused him mental harm.
• Accessing work training education. Mr B was not in work as he was a full-time carer for his mother. Mr B said he did not want support in this area at the moment as he wanted to rebuild his life first.
• Making use of the community. Mr B said he lacked confidence to use public transport. Mr B said he did not want support in helping him to improve confidence to access public transport. He said he wanted to be away from the drug users.
18. The conclusions of the assessment were as follows. The social worker said:
• Mr B did not have any eligible needs for care and support under the Care Act.
• Mr B’s mental health had been seriously impacted by becoming Mrs C’s carer.
• Mr B may meet some of the eligibility criteria for development K but there was ‘no evidence presented that [Mr B] has a registered learning disability, a diagnosed physical or sensory impairment, or the need for care and support package which are the main elements of the eligibility criteria.’
19. The social worker visited Mr B on 5 October 2023 to go through the assessment. The social worker explained to Mr B that he scored no eligible needs on each outcome. The notes of the visit said: ‘We discussed and agreed the assessment was a true reflection of his current situation. We discussed that Mr B's physical and mental well-being was as a direct result of not having a home he feels safe and able to take his mother’.
20. Mr B said he wanted one of the bungalows on development K but felt he did not meet the criteria but also commented that it appeared that the criteria continued to change. The social worker agreed to resubmit Mr B's application for development K.

Eligibility criteria

21. I asked the Council to send me the eligibility criteria for development K which the housing panel considers. The Council sent me a document called ‘Eligibility Criteria and Allocation Process’. This says that an applicant had to meet each of the following criteria to be eligible:
• Housing and care needs usually associated with, but not restricted to working age adults with a physical or sensory impairment, learning disability or mental health condition or applicants currently on the Leeds Homes Register who have Band A medical priority.
• Leeds as their normal place of residence or with a close family association
• Demonstrable care and support needs and / or housing that is unsuitable to meet their health and social care needs relating to:
1. Learning disability
2. Physical health issues
3. Mental health issues
4. Multiple health problems
5. Sensory impairment
6. Loneliness and isolation
7. Safety and security
• A current or predicted need for planned support and an ability to benefit from this service.
• An eligible need, as assessed by Adult Social Care under the Care Act 2014, and as defined by the national eligibility threshold.

Information leaflet

22. I also asked the Council to send me the Frequently Asked Questions (FAQ) leaflet which was given to Mr D. This leaflet relates to development K specifically. It contains the five same criteria that the housing panel considers but the first criterion was changed in June 2023.
23. The initial FAQ leaflet dated March 2023 said:
• ‘Housing and care needs usually associated with, but not restricted to working age adults with a physical or sensory impairment, learning disability or mental health condition or applicants currently on the Leeds Homes Register who have Band A medical priority.’
24. This first criterion was then changed in the FAQ leaflet in June 2023 which said:
• ‘Housing and care needs usually associated with, but not restricted to working age adults with a physical or sensory impairment or applicants currently on the Leeds Homes Register who have Band A medical priority with a formal package of care.’

Housing panel meeting on 6 November 2023

25. The Council's housing panel met on 6 November 2023 and considered Mr B's application for housing at development K. The panel considered the reasons Mr B had provided for applying to development K. Mr B said he felt at risk from drug users in his current property. Mr B said he would benefit from accessing the communal social activities at development K.
26. The panel said Mr B was choosing the accommodation because of its locality in relation to Mrs C's home but Mr B was unclear how this development would benefit him specifically. The access to the community hub was available to Mr B regardless of where he lived. The panel also noted that Mr B would not spend much time at his own home as he slept at Mrs C’s home six nights a week.
27. The panel said the bungalows were a limited resource and the Council had to ensure that they were allocated to service users who would benefit from all aspects of the scheme and the services they provided to ensure the best use of the housing stock. The panel said Mr B did not meet the eligibility criteria for development K.

Mr B’s complaint

28. Mr B disagreed with the panel's decision and made a complaint. Mr B said:
• The Council had failed to follow its eligibility criteria. The criteria included ‘mental health needs’ which would make him eligible.
• The Council changed the eligibility criteria for development K after his complaint in March 2023 and removed the mental health criterion because of his complaint.
• The Council did not properly assess his needs for care and support as it did not recognise the impact of his mental health, his social situation and his housing needs on his well-being. The Council also did not recognise that he had needs for support which were met by his sister. The Council did not make reasonable adjustments for Mr B.

The Council’s response to the complaint

29. The Council published its investigation report into Mr B's complaint on 8 August 2024. The investigating officer spoke to senior managers in the housing and social care departments at the Council and at development K.

Complaint about eligibility criteria – mental health needs

30. In terms of the first two complaints regarding the eligibility criteria, the Council said the FAQ leaflet that the Council provided to applicants did not contain the full criteria that the housing panel used to make decisions. The housing panel had further guidance to interpret the criteria and make consistent decisions.
31. The Council said the bungalows were approved at local authority level solely for adults with physical and/or sensory impairment and applicants were restricted to this category. A physical disability and/or sensory impairment was the primary need and then the panel would look at mental health needs, housing needs, priority boundary and anyone with a care package. The Council said the housing panel did not disregard mental health needs but these were considered alongside other needs.
32. One of the managers said Mr B's complaint did trigger a change in the criteria and stated it was clear in the conversations he had during his involvement in the commissioning and planning of the service that development K was for people who needed high packages with sensory or physical impairments.
33. Another manager said the eligibility criteria for development K had not changed. They said the housing panel rejected eight applications where the applicants did not have a physical or sensory impairment need and therefore did not meet the eligibility criteria. The manager acknowledged that the FAQ leaflet was updated but said Mr B was not the only person whose application triggered the update of the FAQ leaflet.
34. The investigating officer made the following conclusions in his report. He said:
• Mr B was given a clear indication of the eligibility criteria for development K. He was given verbal feedback that professionals felt he would not be eligible for this accommodation as he did not have eligible care needs under the Care Act.
• The FAQ leaflet did mention that mental health conditions could lead to eligibility. However, it was also clear that the criteria included a requirement to have eligible needs under the Care Act. Mr B did not have any eligible needs under the Care Act therefore he would never have been eligible for development K.
• The eligibility criteria for development K had not changed. However, the publicly available FAQ leaflet was changed to provide clarity. This led Mr B to believe that the mental health needs criteria had been removed and that there had been a change in the eligibility criteria. This caused him confusion and distress because of the change.
• It appeared to Mr B that this change was made because of his complaint but it was made because of several concerns raised about the leaflet.

Complaint regarding the assessment of Mr B’s needs

35. The complaints investigator interviewed the social worker who assessed Mr B's needs. The social worker said during the interview that Mr B had eligible needs for care and support under the Care Act but, because he received support from his sister and was declining services, these needs were no longer eligible and he could not be offered any support under the Care Act.
36. The investigator said this was not in accordance with the Care Act or the CASS Guidance. The CASS Guidance was clear that, if a person’s needs were being met informally by family or friend carers, these needs did not become ineligible but should be viewed as being met. Similarly, if a person had eligible needs but did not want the support offered by the Council, these needs did not become ineligible.
37. In a later interview the social worker then said that she was talking about the carer’s assessment of Mr B not the assessment of Mr B's needs himself. However, the investigator said that this continued to highlight ‘the misunderstanding or misapplication of the law in relation to eligibility determination’.
38. The investigator concluded:
• ‘The outcome of the assessment was that Mr B did not have any eligible needs, which may have been contradictory to the social worker’s analysis that [Mr B] did have eligible needs, but these are either met by [Mr B’s] sister or he has declined other services from the local authority. This may have influenced the second housing application if this had been recorded in a more accurate way. This will be a recommendation to the local authority for consistent practice.’
39. The investigator also clarified Mr B's complaint about reasonable adjustments. Mr B said he did not ask for reasonable adjustments to engage in the assessment process but rather that the Council should have applied a reasonable adjustment to consider his application for housing at development K. He felt the Council's thinking in terms of his needs was too rigid and the Council only explored whether his needs could be met by traditional care provision such as the care agency. He felt that there had been a lack of creativity in the Council's approach. He said that, as his needs arose from his mental health, there was not an understanding or willingness to explore alternative support mechanisms.
40. The investigator said this was a very valuable reflection from Mr B and he had added it as a recommendation for the Council to consider for future practice.
41. The investigator made other recommendations to the Council as a result of Mr B’s complaint. These related, among other things, to supporting practitioners in assessing and recording eligible needs (either met or unmet) under the Care Act.

Analysis

42. I have read the ‘Eligibility Criteria and Allocation Process’ document which the housing panel applied to determine eligibility for development K. I asked the Council to send me all the eligibility criteria documents for development K so I presume there are no other documents.
43. The eligibility document the Council sent me did not restrict applications to people with a physical disability or sensory impairment. But the Council said that this restriction was one of the criteria that applied to development K and had always been one of the criteria.
44. I suspect that the document the Council sent to me was the general policy document that the housing panel uses to assess eligibility for all supported/extra care housing. However, clearly there were other criteria (the requirement to have a physical disability or sensory impairment) that applied to development K only.
45. The Council has the right to apply additional criteria to individual developments so that is not fault in itself, but I am concerned that those additional criteria were not put in writing when the panel members considered them. Any policy, guidance or eligibility criteria that the panel considers should be in writing.
46. This then led to the problem with the FAQ leaflet as the initial leaflet reflected the general eligibility document rather than the eligibility criteria which applied to development K. That was fault as it meant that the FAQ leaflet did not reflect the actual criteria that the housing panel considered in applications to development K. The leaflet was misleading and led to Mr B to apply for development K when he never had any chance of success.
47. The Council then corrected the FAQ leaflet, but the fact remains that it should not have provided the incorrect leaflet in the first place. So I uphold Mr B’s complaint in that respect. And I question why the Council did not amend the eligibility criteria for development K (which the housing panel used) at the same time as it amended the FAQ leaflet.
48. I also agree with the Council’s complaints investigator that there was fault in the assessment of Mr B's needs for care and support.
49. There were sections in the assessment where the social worker identified that Mr B’s sister provided support or where Mr B may be eligible for support but turned down support, for example nutrition, keeping a habitable home and accessing the community. The assessment said Mr B did not have eligible needs in those areas but it may be that he had eligible needs which were met by a carer, or where support was refused by Mr B. The assessment should have been clearer in this respect and therefore I agree with the Council’s conclusion that there was fault in this respect.
50. I have also considered Mr B’s complaint that the Council’s approach was too rigid and applied the rules too strictly. He felt that the offer a bungalow would have met his mental health needs. He felt the Council should have applied more discretion in its application of the eligibility criteria.
51. I cannot find fault if the Council is applying the rules and it is not up to the Ombudsman to say a council should have applied discretion in a particular case. However, I agree with the Council’s complaints investigator that Mr B made a valid point and I note the Council’s recommendation to explore a flexible and creative approach to care planning.
52. I have also considered the injustice Mr B suffered because of the faults I have identified. Mr B was never eligible for development K as he did not have a physical or sensory disability. So even if the faults had not happened, the outcome would have been the same. However, Mr B suffered an injustice as he thought he may be eligible for development K and went through the stress and disappointment of applying for development K and not qualifying.
53. In a complaint such as this one, where the person has not suffered a financial loss because of the fault, the Ombudsman can sometimes recommend a small symbolic financial remedy. I note the Council has already paid Mr B £200 and I agree that this is in line with the remedy the Ombudsman would have recommended so I do not recommend any further financial remedy.
54. The Council has also amended its guidance on eligibility for extra care housing following the complaint and it has added additional eligibility criteria for development K.

Action

55. The Council has already provided a financial remedy and amended the relevant eligibility criteria document. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Mr B for the fault I have identified.
• Remind the relevant officers that any policies, guidance or eligibility criteria the Council applies, should be in writing and not verbal only.

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Decision

56. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman