Summary: Mr Y complained the Council did not provide adult social care support, which meant he was homeless, destitute and his mental health deteriorated. There were faults in the assessments of Mr Y’s care needs and in the Council’s human rights assessment. However, there is some uncertainty about whether the outcome would have been different but for those faults. The Council should pay Mr Y £500 to recognise that uncertainty and review its processes to prevent recurrence.

The complaint

1. Ms X complained, on behalf of Mr Y, an asylum seeker with mental health difficulties, that the Council inappropriately failed to provide accommodation and social care support to Mr Y. As a result of the lack of support, Mr Y was homeless and destitute and his mental health significantly deteriorated.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 considered:
• the information Ms X provided, on behalf of Mr Y, and discussed the complaint with her;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
6. Ms X, Mr Y and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Assessment of social care needs

7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and, where suitable, their carer or any other person they might want involved.
8. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

9. Councils should provide a care and support plan for those with eligible needs. The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. Councils are not required to meet needs that are already being met by an unpaid carer, such as a friend or family member, and those arrangements can continue.

Asylum seekers and adult social care

10. Where the person has applied for asylum, the council should assess their needs in the usual way. Whilst they are waiting for a decision from the Home Office or a final determination following an appeal, they are not excluded from receiving social services support.
11. However, if the person falls within the excluded group set out in Schedule 3 of the Nationality Immigration and Asylum Act 2002, they will not be entitled to support unless the failure to provide it would amount to a breach of their human rights. This group includes those not currently seeking asylum and unlawfully present in the U.K, such as refused asylum seekers.
12. In those cases, the council will carry out a human rights assessment to establish whether the person is able to return to their country of origin to avoid remaining destitute and homeless in the U.K. in breach of Article 3 of the Human Rights Act 1998. Support will only be provided to avoid a breach of Article 3.

Housing and asylum seekers

13. Asylum seekers will usually have “no recourse to public funds”. This means they will not be entitled to assistance under the Housing Act 1996, although councils do have general discretion to provide housing.
14. Where the asylum seeker has an appearance of need, they should be assessed in the usual way and provided with care and support if they have eligible needs. Housing can be provided as part of a package to meet their care and support needs.
15. Case law says councils should consider firstly whether there are accommodation-related needs. These are needs that can only be met if the person has a home. For example, assistance with washing and dressing cannot be effectively provided if the person does not have housing. If the person does have accommodation-related needs, councils should then go on to consider whether to provide accommodation, even if the asylum seeker has been provided with accommodation by the Home Office.
16. Where the person does not have eligible support needs, councils may provide housing under section 19(1) of the Care Act 2014 where the adult is ordinarily resident in their area or present in their area but of no settled residence.
17. Failed asylum seekers (those who have applied for asylum, which has been refused), should be assessed in the usual way under the Care Act but the council may not be under a duty to provide care and support. If the person falls within one of the excluded groups under section 19(1), support will only be provided where the council decides this is necessary to avoid a breach of their human rights.
18. In considering the question of human rights, the council will have regard to Article 3. This is the absolute right (with no exceptions or limitations) not to be tortured or subject to inhuman and degrading treatment.
19. Where councils decide the person is not eligible for housing support under the Care Act 2014, they should consider whether section 1 of the Localism Act 2011 can be used to provide housing. Or whether housing can be provided using other powers, such as powers in an emergency or to improve public health.
20. When considering whether to use their discretionary powers to provide housing, councils should take into account what alternative options may or may not be available to the person, depending on their specific circumstances.
21. Home Office accommodation may be available to those seeking asylum or who have been refused asylum if certain conditions are met.

What happened

22. Mr Y is an asylum seeker. Ms X works for a refugee charity that has tried to support Mr Y since March 2020. She described Mr Y as destitute and suffering from serious mental illness. Although Mr Y was sleeping rough at times between March and November 2020, he was moving around and his whereabouts was often unknown. The Council said it had no record of him being in its area before November 2020.
23. In late November 2020, Ms X asked the Council for housing assistance for Mr Y. The housing team referred her to the No Recourse to Public Funds (NRPF) Team, which advised Ms X to ask for an adult social care needs assessment. Ms X asked the Council to carry out a needs assessment. She provided background information about Mr Y’s situation and a letter from Mr Y’s GP, which confirmed he was diagnosed with severe depression and post traumatic stress disorder (PTSD), for which he had recently been prescribed medication.
24. The Council carried out a needs assessment by telephone in December 2020. It decided Mr X did not have eligible needs. The assessment noted Mr Y:
• could manage his own personal care and change his clothes but may not do so for up to two weeks, until prompted by friends;
• found it difficult to access the community due to the language barrier, for which he needed assistance from a relative or friends;
• was not able to manage his mental health and had mentioned attempting suicide if he was not housed.
25. The assessment concluded Mr Y did not have eligible care needs because his primary needs were around housing, which was linked to his immigration status, and his mental health needs. The Council noted Ms X was assisting Mr Y to appeal to the Home Office and a GP was supporting him with his mental health. It told Ms X the outcome in January 2021 and closed the case.
26. Ms X said she met Mr Y face to face in December 2020 and described him as thin, inadequately clothed and responding to voices.
27. In May 2021 she sought accommodation through the Home Office’s National Asylum Support Scheme (NASS). This would have involved Mr Y being collected from the charity’s office at 6 a.m. without knowing where he would be taken. She said Mr X was too afraid to do this.
28. Also in May 2021 Ms X challenged the outcome of the assessment. She explained Mr Y:
• could not cook and needed prompting to eat;
• needed support to wash or shower, and change his clothes;
• had to leave the homes of friends and family because it was too stressful for them to cope with his chaotic behaviour;
• had significant mental health difficulties. Friends and family he had stayed with reported they were exhausted by him screaming at night;
• had made suicide attempts. She said she had made a safeguarding referral following one attempt in November 2020 but the Council did not respond;
• had stayed with various people, including strangers, and had slept rough at times, all of which made him vulnerable.
29. The Council carried out a reassessment of Mr Y’s care needs in June 2021. This time it decided he did have eligible care needs but that his needs were being met by friends. It said Mr Y had been unwilling to provide details of the friends he was staying with and therefore it could not establish his whereabouts. If he provided accommodation details, and the address was within its area, the Council would arrange for a support worker to provide short term assistance. It’s NRPF team had advised he was entitled to accommodation through NASS as he had an active asylum claim. It noted Mr X did not require specialised support due his mental health needs.
30. Ms X was unhappy with the reassessment and made a further complaint in early July 2021. She complained to us in September 2021 because she had not had a stage 2 response from the Council. She said:
• the Council’s team did not know Mr Y very well, having only met him face to face twice, and it had not liaised with his G.P;
• it was not Mr Y’s fault that his friends did not want him to disclose their details, and this should not prevent him getting help;
• the offer of a support worker would not meet Mr Y’s needs because he was always moving and was sometimes sleeping rough;
• she did not believe a person had to need specialised accommodation before the NRPF team could accommodate them; and
• she considered Mr Y was too mentally fragile for NASS accommodation. This had been offered but he was too afraid to go.
31. In October 2021, the Council’s NRPF team carried out a human rights assessment. The record of the assessment stated:
• Mr Y had eligible care needs, his primary needs being around housing, accessing support for his mental health and accessing the community, due to the language barrier;
• Mr Y was currently supported by friends, who also supported him with maintaining nutrition and personal hygiene. It was unclear whether Mr Y was physically capable of those tasks but lacked motivation due to his poor mental health, or whether there were other reasons for him needing that support;
• Mr Y could not return to his country of origin due to the political situation there, having been tortured previously by the regime that were in control in that country. It would be a breach of his human rights for him to be forced to return there to access support with his housing needs and destitution;
• The NRPF team would support vulnerable adults who were receiving support under section 117 of the Mental Health Act but that single adults were supported by the Home Office. Mr Y was eligible for support from the Home Office but had declined it. He should be encouraged to ask the Home Office to consider placing him in accommodation near to his support network.
32. Later in October 2021, the Council responded to the complaint at stage 2. It apologised for its delay in responding. It said:
• It could not trace receipt of an email from Mr Y’s GP in late June 2021 saying Mr Y was in desperate need of housing. However, by that point it had closed its case on the basis Mr Y did not require specialist support to meet his mental health needs;
• Mr Y had said he was staying with friends but would not provide details. If he provided an address, and it was in Lambeth, it would arrange short term support for his care needs. However, his route to housing should be through the Home Office due to his immigration status.
• It had asked its NRPF team to carry out a human rights assessment. The team advised Mr Y to seek assistance from the Home Office.
33. In March 2020 Mr Y was granted leave to remain in the U.K. Miss X assisted him to make a homelessness application and the Council’s housing team has now provided accommodation.

My findings

34. There is no evidence the Council was aware of Mr Y before late November 2020.
35. The Council carried out a needs assessment in December 2020. The assessment record shows Mr Y had difficulties with maintaining nutrition and personal hygiene, managing his mental health and accessing the community due to the language barrier. Therefore, it was wrong to conclude he had no eligible care needs, and this was fault.
36. It is unclear whether the Council would have been able to provide care and support, however, given Mr Y’s reluctance to say where he was living at the time, but Ms X and Mr Y are left with some uncertainty about whether the outcome would have been different.
37. The later assessment, largely based on the same information, concluded Mr Y did have eligible care needs but his needs were met by friends. The Council would not be under a duty to provide care if Mr Y’s needs were met by unpaid carers and that arrangement could continue. However, Ms X was clear throughout that Mr Y’s friends were struggling to continue supporting him. It is unclear from the assessment record whether and how their ability to continue to supporting Mr Y was considered by the Council. In addition, I have seen no record to show this was explored with Mr Y’s friends nor with his GP. That said, I acknowledge Mr Y did not provide details of the friend he was staying with in 2021 so it was not possible for the Council to contact that individual.
38. The records also indicate the Council failed to consider whether and how Mr Y’s mental health was impacting on his ability to manage tasks such as maintaining nutrition and personal hygiene.
39. On this basis, I find there was fault with the later needs assessment.
40. The Council did carry out a human rights assessment, which concluded Mr Y had eligible care needs and could not return to his country of origin. In such circumstances, the Council should have provided support to meet Mr Y’s care needs to avoid a breach of Mr Y’s human rights.
41. That said, I accept there were practical difficulties in providing care when Mr Y would not disclose his current address, which means there is some uncertainty about what support could have been provided.
42. Case law indicates that councils should still consider whether a person has accommodation-related care needs in cases where the Home Office is providing accommodation. There is no evidence the Council has done so. It simply said Mr Y should apply to the Home Office for accommodation. It is also unclear whether and how the Council considered Mr Y’s reasons for not accessing this, nor whether Mr Y’s care needs could be met whilst he lived in Home Office accommodation, nor whether it considered providing housing on a temporary basis whilst it assisted Mr Y to approach the Home Office for support.
43. On this basis, I find fault in the way the Council considered Mr Y’s request for housing assistance.
44. I cannot say, even on balance, what the Council would have concluded if it had considered these additional factors, but Mr Y and Ms X are left with some uncertainty about whether the outcome would have been different if there had not been fault in the decision-making process.
45. It is unclear why it took the Council until October 2021 to carry the human rights assessment, given that it found Mr Y had eligible needs in June 2021 and received a further complaint from Ms X in July 2021. The delay in completing that assessment is further fault, but again there is uncertainty over whether this caused additional injustice to Mr Y.
46. There is no evidence the Council considered offering temporary accommodation whilst it completed either of the needs assessments. This might have assisted it to make a more comprehensive assessment of Mr Y’s needs, which may have avoided the faults identified in both needs assessments. The failure to consider providing temporary accommodation was fault. However, I cannot say the Council would have provided temporary accommodation after considering the issue. This adds to the uncertainty over whether the outcome for Mr Y would have been different but for the faults identified.

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Agreed actions

47. The Council will, within one month of the date of my final decision:
• apologise to Mr Y for the failures I have identified; and
• pay Mr Y £500 as a token to reflect the uncertainty about whether the outcome would have been different if the Council had considered his request for support without fault.
48. The Council will, within three months of the date of my final decision:
• review this case to identify the lessons that can be learned;
• review its processes for dealing with requests from homeless adults without recourse to public funds in light of those lessons learned; and
• share the learning, and any changes to its processes, with relevant staff.

The Council will provide us with evidence of the action taken within the same timeframe.

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Final decision

49. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman