Summary: Miss X complains that the Council failed to accept responsibility for her aunt and cousin and consequently failed to meet their housing and care support needs. The Council has acknowledged its actions caused unnecessary delays and upset to Miss X and her family. The Council has agreed to apologise, make a financial payment and service improvements.

The complaint

1. Miss X complains on behalf of her aunt (Mrs Y) and her cousin (Miss Z). Miss X says the Council failed to accept responsibility for Mrs Y and Miss Z and consequently failed to meet their housing and care support needs.
2. Miss X says the issues have caused immense distress and uncertainty for the family.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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 have considered the information provided by Miss X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
6. I wrote to Miss X and the Council with a copy of my draft decision and invited their comments. I considered all the comments I received before reaching a final decision.

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What I found

Ordinarily Residence

7. The Care and Support Statutory Guidance (Department of Health, October 2014) says a Council is only required to meet the needs in respect of an adult who is ‘ordinarily resident’ in their area. Ordinarily resident is a key test which needs to be met to establish whether a Council is required to meet a person’s eligible needs. So, it is crucial that a Council establishes whether a person is ordinarily resident in their area and whether a duty arises.
8. There is no definition of “ordinary residence” in law, but chapter 19 of the Guidance says the term should be given its ordinary and natural meaning subject to any interpretation by the courts.
9. The courts have considered the meaning of “ordinary residence” and the leading case is that of Shah v London Borough of Barnet (1983). In this case, Lord Scarman said:

‘unless... it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.’

10. Where doubts arise about a person’s ordinary residence, it is usually possible for local authorities to decide that the person has resided 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 make clear that local authorities have a duty to meet the eligible needs of people if they are present in its area but of no settled residence.
11. Section 19.15 of the care and support guidance says local authorities must always have regard to the Shah case when determining the ordinary residence of adults who have capacity to make their own decisions about where they wish to live. Local authorities should in particular 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. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.

Ordinary residence disputes

12. The law says what procedures local authorities must follow when disputes arise between them about a person’s ordinary residence.
13. Section 19.77 of the care and support guidance says local authorities must first take all reasonable steps to resolve the dispute between themselves. The guidance emphasises that the person should not go without the care they need, should local authorities be in dispute. The local authority that is meeting the needs of the adult or the carer on the date the dispute arises, must continue to do so until the dispute is resolved.
14. Section 19.78 states “the lead authority must identify all the authorities involved in the dispute and co-ordinate an ongoing dialogue between all parties involved…The lead authority must also keep the person, or their carer, if appropriate fully informed of the dispute in question and of progress regarding any resolution.”
15. The regulations place a duty on the parties involved in the dispute to provide specified information to the Secretary of State or an appointed person.

What happened

16. Below is a chronology of the key events, it is not meant to show everything that happened.
17. Mrs Y has severe learning disabilities, short sighted and has suffered from depression and anxiety most of her life. Mrs Y’s daughter, Miss Z, has a diagnosis of Asperger’s syndrome, depression and anxiety.
18. Mrs Y and Miss Z were living in City A until September 2019 when they were evicted by their private landlord. They had lived in the same area for 25 years.
19. At the time of eviction, they moved to Knowsley to live with Mrs Y’s sister. Sadly, Mrs Y’s sister passed away suddenly and the tenancy on her council owned property was due to cease on 10 February 2020.
20. On 4 January 2020 Mrs Y was admitted with suspected pneumonia and whilst there suffered a mental breakdown. The hospital subsequently made a referral to the Council. The Council said that Mrs Y was a long-standing resident in City A and had been in contact with the local authority (Authority A) about being rehoused.
21. Mrs Y was discharged back to her sisters’ property on 13 January 2020. The Council told Miss X that she should contact Authority A. Miss X spoke to Authority A and was told that Mrs Y and Miss Z left of their own free will and were not known to social services. Authority A said the Council was responsible for Mrs Y and Miss Z.
22. Miss X contacted the Council again on 16 January 2020 and said that Mrs Y and Miss Z had to leave their current property in three weeks. Mrs Y told the Council that she suffered with mental health problems and had suicidal thoughts. Mrs Y said that she wanted to take over the tenancy of her sister’s property.
23. The Council’s legal department said Authority A had ordinary residence responsibility for Mrs Y and Miss Z. Miss X had contacted the Council and Authority A at the same time, requesting an urgent assessment and because Mrs Y and Miss Z were physically present in Knowsley, the Council said it “should address their urgent need pursuant to s.19(3) of the Care Act 2014 and collaborate with Miss X to identify alternative accommodation”.
24. The legal department sent an email to Authority A on 29 January 2019. It confirmed the Council would complete an assessment to help Mrs Y and Miss Z with their urgent accommodation problem, but it was disputing ordinary residence. It said Miss X had found a two-bedroom flat with supported living in City A, in the area where Mrs Y and Miss Z used to live before they were evicted. Mrs Y and Miss Z had agreed to this.
25. On the same day the Council visited Mrs Y and Miss Z and completed a social care needs assessment. Miss X was also present. The social worker asked if it was possible for Mrs Y and Miss Z to remain living in the current property. Miss X explained this was not an option as they had not lived at the property for more than one year. Miss X also said that her mother had passed away in the property and this was affecting the family, Mrs Y and Miss Z.
26. On 3 February 2020 the Council carried out mental capacity assessments with Mrs Y and Miss Z. They were deemed to have capacity regarding decisions about residence and care and support needs.
27. On 7 February 2020 the Council contacted the housing provider of Miss X’s mother’s property. The provider agreed to extend the tenancy for a further three weeks.
28. On 19 February 2020 Miss X contacted the Council for an update. She said they had not heard anything following the assessments.
29. The Council visited Mrs Y and Miss Z again on 2 March 2020. They spoke about supported living accommodation and returning to City A and being near family members. Miss X and her sister explained that they had not be able to grieve for their mother due to supporting Mrs Y and Miss Z. They said they did not wish to continue visiting the property as their mother had passed away in her bedroom.
30. The Council advised Miss X to contact Authority A and establish what support they can provide. The Council explained that although supporting living had been discussed extra care housing was also an option. Miss X asked why she was being asked to contact Authority A. The Council said “we are different authorities and the referral would need to go through Careline and then this passed to the [social work] team”.
31. On 4 March 2020 the Council spoke to the housing provider of Mrs Y’s sister’ property. The provider said Mrs Y and Miss X could stay for up to three months but after this time they would need to consider legal action, which he wanted to avoid.
32. On 10 March 2020 Authority A confirmed that Mrs Y and Miss Z were on the housing register. The Council asked Miss X if a family member could assist Mrs Y and Miss Z with bidding on properties in City A. Miss X was frustrated and said she was “absolutely done with the situation” and the Council would have to assist them. It is noted that at the time Miss Z bid on two properties but was unsuccessful.
33. The Council agreed there was no further role for the housing department and the case was transferred to the communities team for monitoring and assistance once accommodation had been identified. The team carried out welfare checks by telephone and home visits. The Council’s records show that Mrs Y and Miss Z declined support from the Council, including assistance with personal care and meals for Mrs Y.
34. The Council’s records show that Authority A identified a suitable property (Property A) for Mrs Y and Miss Z in early July 2020. Miss Z confirmed that they were familiar with the area and would be close to family. The Council liaised with Authority A and was told that once the property had been vacated by the existing tenants, repairs would be undertaken before Mrs Y and Miss Z could move in.
35. On 6 August 2020 Miss X’s sister contacted the Council. She said that Mrs Y and Miss Z were vulnerable adults and had been living in Knowsley for seven months and while they were both reluctant to accept support from the Council, social workers should ensure they are supported. The Council explained that Mrs Y and Miss Z both had capacity to make decisions about their care and support needs.
36. The records show frequent communication between the Council, Authority A, Mrs Y and Miss Z about moving to Property A. Mrs Y and Miss Z moved into the property on 19 September 2020. On the same day the Council sent copies of all assessments completed for Mrs Y to Authority A. Copies of assessments completed for Miss Z were sent on 23 October 2020.

Miss X’s complaint to the Council

37. On 6 March 2020 Miss X complained to the Council. Miss X said the case had been managed poorly and the family had struggled to understand who was responsible for supporting Mrs Y and Miss X to find appropriate housing.
38. The Council responded on 25 June 2020. It accepted that it had received a referral from Miss X and Mrs Y in January 2020, requesting a social care assessment for Mrs Y and Miss Z. The Council said that every effort had been made by the housing officer to ensure that Mrs Y and Miss Z were not evicted. However, the Council acknowledged it had caused unnecessary delays and upset to Miss X and her family by “instigating an ordinary residence debate with [Authority A] at a time when it was not appropriate to do so”. The Council said at the point of contact in January 2020 it should have confirmed that Mrs Y and Miss Z would have been considered as ordinary residence in Knowsley, assessed their needs first and then liaise with Authority A at a later date, if appropriate. The Council apologised to Miss X.

Analysis

39. The guidance is clear that the question of ordinary residence should be determined after a needs assessment has identified that the person has eligible needs under the Care Act 2014 and that the person should not go without the care they need, should local authorities be in dispute.
40. The Council accepts it should have accepted a referral from Miss X and Mrs Y in January 2020. The Council also accepts it was at fault for instigating an Ordinary Residence dispute with Authority A at the time.
41. The Council accepted Mrs Y and Miss Z for ordinary residence on 27 February 2020 but there is no evidence that it communicated this to the family. This is fault.
42. In response to my enquiries the Council explained it does not have a policy for ordinary residence. This is fault. I welcome the Council’s actions to now produce and implement a policy.
43. The Council has already apologised to Miss X for the faults identified in paragraph 39. I must now consider whether the apology was sufficient to remedy any injustice caused by the Council’s actions.
44. Mrs Y and Miss Z are both vulnerable adults and were supported by Miss X. The Council’s faults caused unnecessary delays and distress and uncertainty to the family. The time, trouble and inconvenience that the family was put to, coupled with the avoidable distress and worry caused by this situation at a time when they were grieving the loss of Miss X’s mother, was a significant injustice to them. The Council failed to inform the family that it had accepted ordinary residence for Mrs Y and Miss Z at the time. If it had done so, it may have alleviated some of their anxiety.

45. I recognise the process of finding suitable accommodation for Mrs Y and Miss Z has not been straight forward. I also recognise the support provided by the housing team to ensure they were not evicted from their current property. The Council continued to offer support and guidance to Mrs Y and Miss Z during this period. When the case was transferred to the communities team, the housing team made contact with Mrs Y and Miss Z to ensure they understood the decision and reasons for it. In line with government guidance the Council did not undertake any home visits during the Covid-19 pandemic but did carry out welfare checks by telephone.

46. Based on the evidence seen, I find that once the Council had accepted ordinary residence it communicated clearly and frequently with Authority A and Mrs Y and Miss X to secure suitable accommodation that both Mrs Y and Miss Z were agreeable with.

Agreed action

47. Within one month of my final decision the Council will:
1. Apologise to Miss X, Mrs Y and Miss Z;
2. Pay Mrs Y and Miss Z £150 each for the delay, distress and uncertainty caused by the Council’s faults;
3. Pay Miss X £200 for the delay, distress and uncertainty caused by the Council’s faults and time and trouble in pursuing her complaint with the Council and the Ombudsman;

Within three months of my final decision the Council will:

4. Produce and implement a policy on ordinary residence.

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Final decision

48. I have found fault by the Council causing injustice and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman