Date of decision: 19 August 2025
Summary
A man with learning disabilities wanted to move closer to his sister in another local authority’s area. The Council failed to tell him that the Council’s social services team was not responsible for arranging the housing transfer, for over two years. Its communications with the man and his sister were confused and inconsistent. This raised their expectations and caused frustration.
What happened
In March 2022, an adult with learning disabilities told his Council social worker he wanted to move nearer his sister, who lived in another local authority area, in about a year’s time.
The man lived in residential supported living accommodation ‘arranged’ by the Council [the report does not say whether he had signed a tenancy or whether the accommodation had been directly provided by the Council.] The social worker said a mental capacity assessment would be needed to check ‘if he could decide to move’. On 23 March, the social worker informed the sister, saying another worker would be allocated in six months to start the process of supporting the man to move.
The Council completed a mental capacity assessment in October 2022, finding he did have capacity to decide to move. [That would have meant understanding that it would involve a change of social services authority, and the report does not engage with the question of how that decision was made or whether adequate information about the consequences was provided. The report’s context implicitly suggests however that it could not have been explained.]
After a hospital admission, the social worker visited him in April 2023; he said again that in the longer term he wanted to live closer to his sister. The sister emailed in October 2023 for updates and chased again in December 2023.
On 14 March 2024, the Council told her it had no duty to assist with moving areas, though it offered to contact the other Council to inform them of his wish to move. When she queried this, the Council confirmed that it was not responsible for arranging housing while maintaining his current placement which met his assessed needs. The Council said that the other local authority may offer the man a Care Act Assessment, if he moved.
However, a Council officer emailed on 12 April 2024 stating that the legal team had misadvised them (but not in what regard); a new social worker would pick up the task concerning the move.
Later that month, the Council shared the man’s information with the intended destination local authority.
By late April, the sister pressed for an update; the new social worker confirmed that records had been shared and said they would discuss the move with the man.
On 21 August 2024, at a meeting with the sister, the Council clarified it would not handle his housing transfer, as it was not the council’s decision for him to move.
Subsequently, the Council asked the current care provider to help him apply to the other local authority’s housing register—this was completed, and the Council passed on details of some likely suitable schemes.
Throughout, mixed communications left the family unsure whether the Council was managing the move or not.
What was found
The Council was clear it did not consider it had responsibility for arranging the man’s transfer to accommodation in another local authority’s area. This was because it said it had assessed the man’s care needs and had put in place care provision, including accommodation, which meets his needs.
The Ombudsman found no fault in how the Council concluded it was not responsible for coordinating the man’s housing transfer—this followed statutory guidance, as far as the investigator was concerned. The Ombudsman considered that where a person has mental capacity and is living in supported accommodation the Council does not have a responsibility to arrange housing transfers as desired, and could not be criticised for referring the man’s sister to another authority.
The Ombudsman appreciated that the man wanted to move to be closer to his sister, but was satisfied the Council did not have any legal responsibility to make those arrangements. It is obvious that no council is in control of the other local authority’s housing allocation.
The Council must ensure the man receives care without interruption if moving, and that there are no gaps in his care provision, were he to move to a different area – but that is different from saying the Council has a responsibility to make the housing transfer arrangements. The Council had acted properly by telling the other local authority about the man wanting to move to its area and by arranging for the care provider to help him put in his Housing Register application and to bid on properties.
However, the Council’s communications with the man’s sister were not clear and likely misled her into believing the Council was responsible for the housing transfer arrangements. In March 2022, the Council said it would appoint a social worker in six months to help the man move to the other local authority area. The Ombudsman was not sure if this was because the officer dealing with the case did not understand the Council’s responsibility about transferring housing or because the officer was referring to the transfer of care arrangements. The email could be interpreted either way and this was fault.
There was a failure to correct the sister’s misunderstanding in 2023, and further misleading communications in 2024 when it said that it had been misadvised by the Legal Team. As with the March 2022 information, the Ombudsman could not say whether the officers dealing with the case had misunderstood the Council’s responsibility for a housing transfer or whether they were referring to the transfer of care arrangements. The Council’s communications misled the man and his sister and caused frustration and upset.
The Ombudsman recommended that the Council apologise to both and pay them £300 each.
There was also a requirement that the Council provide training for social workers on responsibilities related to out-of-area moves for adults with capacity, who were not in residential care. This should cover transferring social care and the separate process for any housing transfer. The Council accepted these remedies.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Mr X’s date of knowledge about when something may have gone wrong in his case was March 2024 when he was told something quite different from what the team had first told him. As Mr X complained to the Ombudsman within 12 months of March 2024 the Ombudsman’s service did not consider the earlier period outside of its jurisdiction.
The report quotes the relevant sections of the Care and Support statutory Guidance in relation to continuity of care where a person wants to move area ‘voluntarily’ including the requirement that the local authority which is currently arranging care and support, and the authority to which the person is moving, work together and share information.
The report is silent about whether there was any such working together in this case, although it sets out the requirements in full.
Central Government policy (which changed with the implementation of the Care Act) is that where the person takes the initiative to decide to move to a new area, their ordinary residence status is presumed to change, and the old council ceases to be responsible, but continuity of care arrangements is provided for by way of liaison and carry over duties by the destination authority’s ASC team.
On the other hand, when a person – who may well already have a tenancy in supported accommodation – wants to move, it is important to note that a Council can remain ordinarily resident responsible for them, and that that possibility does not turn specifically on their capacity to understand a tenancy, and sign it, as part of their wish to move.
To the extent that a person’s willingness to sign a tenancy, or their having a deputy or attorney to do it for them, as their statutory agent, is a necessary feature of the vast majority of supported living arrangements, and implicitly connotes a choice having been made, at least to some extent – whether (strictly speaking) a capacitated choice, or not, is an inconvenient aspect of both of the options – continuity of care, OR continuing ordinary residence. What is telling is that in neither situation will the person’s accommodation have been directly PROVIDED by either Council acting under the Care Act. Therefore, the Guidance authors had no option but to require some further indication of intention on the part of the old council to remain the person’s responsible council, for the imposition of continuing ordinary responsibility. This was done by way of a requirement that magic words be placed on the reassessed-for care plan that will have been done, before the person’s actual move…
It is difficult to see how a person who requires supported accommodation, will ever, in practice, be able to obtain suitable accommodation through the housing register, (or otherwise) without the active involvement of two local authorities’ social work teams.
- As mentioned above, no individual council can access another council’s housing register: joining it is a matter of decision on the part of the local housing authority.
- The housing benefit officers will be reluctant to consider paying housing benefit to people who are ‘special needs’ people from another area. We are aware that when a unitary council with a housing authority NEEDS to project someone into supported living in another area, it does so by offering to pay the benefit required to pay the rent, although we are not sure about the legalities of such arrangements.
- Supported living accommodation as defined as ‘specified’ in the regulations providing for ongoing continuing ordinary residence responsibility is not ever provided through the Housing Register system. That is true whether it is ‘organised’ in area or much less often for the reasons set out above, out of area.
- It is ‘organised’ by the social care team – supposedly commissioning supported living services from care businesses, and then expecting those providers to liaise with housing providers and do deals whereby the providers acquire nomination right to tenancies in return for promising to pay the housing provider for voids or deficits in housing benefit so that a sufficient rent is guaranteed.
The Council was correct in saying that it did not have a duty to fulfil Mr X’s desire to move to the other local authority area, but we think that it got the reasoning wrong. The better reason, rather than just saying ‘we’ve done our job and he’s fine’ – is because the law under the Care Act is that the ASC team does not have any power, even, let alone a duty, to provide housing, directly, to UK nationals who have capacity (see Campbell, May 2024 (Court of Appeal). The fact that it had facilitated his acquiring accommodation, previously – no doubt by locating a vacancy in a house where a tenancy could be signed, and where care was being commissioned for the occupants, was a way of having previously discharged its duty. But the facility for directly providing people with accommodation and with Choice of Accommodation rights, on top, must be because there will be plenty of people in whose best interests, it will undoubtedly be, to move – even though they don’t need to be in a care home, and just need a new tenancy.
The definition of ‘specified accommodation’ for the purposes of continuing ordinary residence responsibility is ambiguous: not all supported accommodation would qualify, but it is obvious that the government’s policy and legislative intent is NOT ONLY limited to people who lack capacity or to people who cannot hold a tenancy.
The relevance of incapacity (for a person without any deputy or attorney) is that they cannot use the Housing Register or Homelessness system at all, and are therefore outside the ban in s23 of the Care Act, as reiterated in Campbell, on the direct provision of accommodation, as part of the person’s assessed needs for efficacious care and support under sections 18-20 – meaning that the council in question has power to provide / deliver / fund the accommodation, and not via a tenancy and housing benefit, as part of the Care Act function, but through direct funding, offset only by the charging system.
The report suggests that Bath & NE Somerset social workers had ‘arranged’ the man’s current accommodation. But there is no detail about whether that was directly provided, or merely facilitated in the time-honoured way of ‘signposting’ to supported living, and then persuading the person to take the tenancy on, or more often, persuading the person’s lawfully authorised decision-maker for finance and property matters to sign a tenancy.
The rules make it clear that it is only if a council adds some magic words to that sort of a move, albeit out of area, that it remains liable for the person’s Care Act care package, and the magic words are very specifically designed NOT to create a liability to PROVIDE (ie pay for or contract for) that accommodation, as part of the care package.
In response to the Ombudsman’s enquiries, the Council was clear that it did not consider it had responsibility for arranging the man’s transfer to another local authority because it had assessed his care needs and had put in place care provision, including accommodation which met his needs. We think that if the policy behind the tortuous and convoluted provisions in the Care Act and the Guidance were better understood: (ie that even people who DO lack capacity are entitled to have a person-centred response to need which takes account of their wishes and feelings, and their best interests, regarding location, IF their original council steps up to continuing to embrace the responsibility, and merely finds or facilitates the sourcing of accommodation in a different area, without having to place them in a care home OR in unregistered accommodation, directly) – it would have been better for this report. However, whether or not the person takes a tenancy is not the determinant of the continuing ordinary residence framework. If the unregistered but specialised accommodation is, exceptionally, directly provided, as accommodation plus, it goes without saying that the Care Act responsibility will continue, because it is properly seen as ‘a placement’. But even if a tenancy is able to be signed, it is the embracing of continuing ordinary residence responsibility by the addition of the words on the care plan, by the previous council, that is the all-important thing.
We are told that the man was provided with information about ‘potentially suitable schemes’ in the other local authority’s area, but we cannot see how the man and his sister could work out which schemes were actually suitable, and available, without active social work support from both authorities working together. It is disappointing to say the least that the report does not grapple with this problem.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Bath and North East Somerset Council (24 015 922) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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