Summary: The Ombudsmen found fault by the Council with regards to the care and support provided to a young woman with complex care needs. This fault meant the woman went without care for two years and caused both her and her mother significant distress. The Council has agreed to waive the outstanding care fees and pay an additional sum in recognition of the distress this caused for the woman and her mother.

The complaint

1. The complainant, who I will call Mrs G, is complaining about the care and support provided to her daughter, Miss H, by Essex County Council (the Council) and Essex Partnership University NHS Foundation Trust (the Trust). Mrs G complains that:

• The Council and Trust delayed in putting an appropriate care package in place for Miss H when she requested this in 2017.
• The Trust eventually arranged a care package for Miss H but wrongly advised her the NHS would fund this. Mrs G says the Council subsequently charged Miss H for the care.
• The Council delayed in completing a financial assessment for Miss H and did not make clear to her that she would be required to contribute to her care.
• The Council refused to take into account Miss H’s Disability Related Expenditure (DRE) when calculating her care contributions.

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The Ombudsmen’s role and powers

2. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
3. 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

4. In making this final decision, I considered information provided by Mrs G and discussed the complaint with her. I also considered information and documentation provided by the Council and Trust. This included the case records. I invited comments from all parties on my draft decision statement and considered what they had to say.

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What I found

Relevant legislation and guidance

Care Act 2014 - Assessment

5. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must consider the adult’s needs, how these impact on that person’s wellbeing and the outcomes the adult wants to achieve.
6. The Department of Health and Social Care produces statutory guidance to accompany the Care Act 2014. This is entitled the Care and support statutory guidance 2014 (the statutory guidance).
7. Section 6.29 of the statutory guidance says an assessment should be carried out over an appropriate and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.

Care Act 2014 - Charging

8. Section 14 of the Care Act 2014 gives local authorities the power to charge for care and support services they provide or arrange to meet an adult’s eligible needs. However, charges may only cover the costs the local authority incurs.
9. The Care and Support (Charging and Assessment of Resources) Regulations 2014 (the Regulations) provide direction for local authorities on charging and financial assessment.
10. Local authorities must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. If a local authority takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, it must also assess disability related expenditure (DRE) in the financial assessment.  The statutory guidance says local authorities must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs that are not being met by the local authority.

Care Act 2014 – Information and advice

11. Section 3 of the statutory guidance places a duty on local authorities to establish and maintain information and advice services relating to care and support for all people in its area. This includes financial information and advice.
12. Section 3.43 of the statutory guidance states that “[t]he local authority must provide information to help people understand what they have to pay, when and why and how it relates to people’s individual circumstances. This must include the charging framework for care and support, how contributions are calculated (from both assets and income) and the means tested support available”.

Care Act 2014 – Delegating services

13. Section 18 of the statutory guidance says that local authorities can delegate most of their care and support functions, including assessment. However, Section 18.4 of the statutory guidance makes clear that a local authority retains ultimate responsibility for how its functions are carried out. The statutory guidance states that “the Care Act is clear that anything done (or not done) by the third party in carrying out the function, is to be treated as if it has been done (or not done) by the local authority itself.”

Key facts

14. Miss H is a young woman with significant mental and physical health problems. These include schizoaffective disorder and Multiple Sclerosis (MS).
15. From April 2016, the Trust’s local Community Mental Health Team (CMHT) supported Miss H in the community. Miss H had an allocated care coordinator. She lived at home with Mrs G.
16. In January 2017, the care coordinator contacted the Council’s duty team to request a Care Act assessment for Miss H. The duty social worker advised the care coordinator that the Trust would need to complete the assessment.
17. In March 2017, Mrs G approached the Council directly to request an assessment. The Council acknowledged Miss H needed an assessment. However, neither the Trust nor Council completed an assessment at that stage.
18. Mrs G approached the Council again in May 2018. This led to a joint visit by the Council and Trust in June 2018. Following this visit, the Council again advised the Trust to complete the assessment.
19. The Trust completed an assessment in July 2018 and produced an updated care plan for Miss H.
20. The Trust arranged a domiciliary care package for Miss H. This started in January 2019.
21. The Council completed a financial assessment in April 2019 to calculate Miss H’s contribution to her care costs.
22. Later that month, Mrs G asked the Council to suspend the care package as Miss H could not afford to pay the assessed contribution.

Analysis

Delayed care package

23. Mrs G complained that the Council and Trust delayed in putting a care package in place for Miss H when she sought this in 2017.
24. The Trust’s records show Miss H’s care coordinator made a referral for her to the Council in December 2016. She requested “a joint assessment with Adult Social care with a view to sharing the cost of the therapy to support both [Miss H’s] mental and physical wellbeing.”
25. A Council manager responded to Officer A in January 2017. She said the Council had delegated responsibility for carrying out Care Act assessments to the Trust. The manager advised Officer A that she (or a colleague in the CMHT) would need to complete an assessment for Miss H. I found no evidence to suggest the Trust completed an assessment at that stage.
26. In March 2017, Mrs G contacted the Council directly. She explained that Miss H was due to move into her own property and was also pregnant. Mrs G said Miss H’s physical and mental health needs meant she required additional support at home.
27. On 11 April 2017, an Occupational Therapist (OT) who had recently worked with Miss H noted she could not take her MS medication due to her pregnancy. She expressed concern about Miss H’s ability to cope at home and said “[t]hings have changed quite dramatically.”
28. A duty social worker concluded that, due to the change in Miss H’s circumstances, it would be necessary to complete a home visit and Care Act assessment. The duty social worker referred the case to a community support worker on 18 April 2017. It appears the support worker was not working for the Council at that time. As a result, the assessment did not take place.
29. Miss H attended a CPA review meeting shortly after this. The notes of the meeting record that Miss H “said she still feels tired but she is managing.” There appears to have been no discussion around additional care.
30. In October 2017, shortly after the birth of Miss H’s child, her care coordinator completed an updated risk assessment and care plan. He felt Miss H’s needs arising from her MS diagnosis could be met through “[p]lenty of rest, relaxation and Physio recommended exercises." The care plan also set out that Miss H would contact her GP if she experienced further health problems.
31. Mrs G contacted the Council again in May 2018 to request a Care Act assessment. The Council officer who took the call noted Mrs G “would ideally like a[n] assessment with her [care coordinator] there, and also someone from the mental health team”.
32. The Council officer subsequently contacted the Trust. She was advised Miss H had been referred to the crisis team as her mental health had deteriorated. The Trust said the team had visited her at home earlier that day and would be providing support.
33. On 22 May 2018, Mrs G called the Council again. She raised concerns about the support provided to Miss H by the Trust. She said Miss H’s care coordinator “was trying to set up a direct payment but this has become problematic due to the issues around [Miss H’s] MS.” Mrs G also reported that she had been providing daily child care for Miss H but would be unable to continue doing so.
34. A Council manager and Miss H’s care coordinator completed a joint visit on 11 June 2018. The Council manager afterwards wrote to the Trust. She noted Miss H had complex mental and physical health needs and asked the Trust to complete a Care Act assessment. She added that “[the Trust] are best placed to do this [as] they have the expertise in relation to [mental health] and there is already a worker in place, to add another worker to try and separate her physical need from her [mental health] need would be impractical and cause confusion for the family.”
35. The Trust accepted this and agreed a senior practitioner would support Miss H’s care coordinator to complete a Care Act assessment. The care coordinator completed the assessment on 24 July 2018.
36. The statutory guidance makes clear that an assessment should be carried out “over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs”. The case records show Mrs G first requested an assessment in January 2017. The Trust did not complete an assessment until July 2018, over 18 months later. I found no satisfactory explanation for this significant delay in the case records.
37. I found no evidence to suggest the Trust carried out an assessment when asked to do so by the Council in January 2017. Similarly, the Council did not take any substantive action when Mrs G approached it directly in March 2017, even though evidence showed Miss H’s circumstances had changed.
38. It is unclear what, if any, action was taken by the Council or Trust after March 2017. Miss H had several different care coordinators during this period. This likely contributed to the ongoing delay. Indeed, it was not until May 2018, when Mrs G approached the Council again, over a year after she had originally done so, that matters progressed.
39. The visit of June 2018 represented an opportunity to complete a joint assessment, as requested by Mrs G. The records suggest a joint assessment was indicated given Miss H’s complex needs and how long the process had already been ongoing. However, following the visit, the Council simply referred the case back to the Trust again to complete an assessment. This led a to a further delay of over two months.
40. The statutory guidance emphasises the importance of effective partnership working between local authorities and local NHS services. In my view, the evidence shows the Council and Trust failed to work together effectively to complete a Care Act assessment for Miss H within an appropriate and reasonable timescale.
41. This was fault by the Council, which has ultimate statutory responsibility for the assessment process under the Care Act 2014.
42. The Trust eventually completed the assessment in July 2018. This found Miss H needed prompting to tend to her personal care and clean her property. The assessment also found Miss H needed additional support to care for her child in the early mornings due to extreme tiredness caused by her MS.
43. The Trust prepared an updated care plan. This found a care package of 5.5 hours of care visits per week could meet Miss H’s identified needs, with extra support provided by her family.
44. However, the case records show the Trust did not apply for funding for the care package until October 2018. This was three months after the assessment visit. In its complaint response, the Trust said this delay was due to annual leave. There was then additional delay as the initial application did not contain enough information. This meant the care coordinator had to resubmit the application in December 2018. The Council subsequently identified a suitable domiciliary care provider and the care package began on 14 January 2019.
45. This means there was a total delay of around six months before the Council put a care package in place following the Care Act assessment. The records show this delay was attributable to the action, or inaction, of Trust officers. Nevertheless, the Care Act makes clear the Council is responsible for providing, or arranging, care and support services for adults with eligible needs. For this reason, I have directed my finding of fault to the Council.

Communication about charging

46. Mrs G complained that the Trust eventually arranged a care package for Miss H but incorrectly advised her it would fund this from the mental health budget. Mrs G says nobody made clear to her that Miss H would need to contribute towards her care.
47. In its response to the complaint, the Council apologised if Mrs G felt she had been misinformed. However, it said Miss H’s care coordinator explained during the Care Act assessment visit in July 2018 that a financial assessment would be needed to determine whether Miss H would be required to contribute to her care.
48. In her complaint to the Ombudsmen, Mrs G said the Trust advised her in writing that it would meet the cost of Miss H’s care through the mental health budget. I found no evidence of this in the records or correspondence I reviewed.
49. Nevertheless, it is clear from Mrs G’s correspondence with the Council that there was significant confusion around care charging in this case.
50. Section 3 of the statutory guidance places a duty on local authorities to ensure people in their area are provided with appropriate information and guidance. The statutory guidance highlights the importance of providing a service user with advice about the care charging process to enable that person to make an informed decision about his or her care.
51. I note the Council’s position that officers explained the charging process to Mrs G during the Care Act assessment visit in July 2018.
52. However, I found nothing in the records of either the Council or Trust to suggest professionals explained the charging process to Mrs G during this visit. Similarly, I found no evidence that professionals provided Mrs G with written information about the process (such as relevant factsheets).
53. Indeed, the records suggest Mrs G only became aware Miss H had to contribute towards her care in February 2019. This was when she received an automated letter from the Council’s finance team. By this point, the care package had been in place for over a month.
54. The available evidence shows the Council (and Trust acting on behalf of the Council) failed to make relevant information available to Mrs G and Miss H as required by the statutory guidance. This represents fault by the Council.

Delayed financial assessment

55. Mrs G complained that the Council delayed in completing a financial assessment for Miss H.
56. The Care Act assessment completed in July 2018 determined that Miss H did have eligible care and support needs under the Care Act 2014.
57. Section 14 of the Care Act 2014 gives local authorities the power to charge for care and support services they provide or arrange to meet an adult’s eligible needs. This includes domiciliary care.
58. Section 17 of the Care Act 2014 says a local authority must undertake an assessment of an adult’s financial resources to calculate the amount, if any, the adult can afford to contribute to his or her care.
59. The case records show Miss H’s care coordinator request a package of domiciliary care from the Council in December 2018. However, he did not submit a referral for a financial assessment. This meant the Council automatically entered Miss H onto its system as a full cost payer.
60. In February 2019, Mrs G received a letter from the Council’s finance team. This explained that Miss H was eligible to pay the entirety of her care costs. Mrs G queried this on 26 February 2019. The finance officer who took Mrs G’s call explained the situation and advised her to disregard the letter until the matter had been resolved.
61. Later the same day, the finance officer asked the Council’s duty adult social care team to complete a referral for a financial assessment for Miss H. The duty team advised that Miss H’s care coordinator would need to make the referral. However, the records suggest Council officers could not contact Miss H’s care coordinator.
62. As a result, a Council officer submitted a referral on 28 February 2019 and sent Mrs G a financial assessment form to complete. Mrs G returned the form on 14 March 2019. The Council then completed the financial assessment on 10 April 2019.
63. The Care Act 2014 makes clear that a local authority should assess an adult’s financial resources once it has determined that person has eligible care and support needs. In Miss H’s case, the Care Act assessment in July 2018 found she had eligible needs.
64. However, it was a further eight months before (in March 2019) a Council officer made a referral for a financial assessment to determine whether Miss H could contribute to the cost of her care. It is unclear why Miss H’s care coordinator did not submit a referral for a financial assessment either in July 2018 or when he requested a care package for Miss H in December 2018. The situation appears to have been exacerbated by confusion between the Council and Trust as to who would need to complete the referral.
65. I found no satisfactory explanation in the records for such a significant delay. This represents fault by the Council, as the agency with statutory responsibility for the financial assessment process.

Disability Related Expenditure

66. Mrs G complained that the Council refused to take into account Miss H’s Disability Related Expenditure (DRE) when calculating her care contributions.
67. Annex C, Section 40 of the statutory guidance provides examples of expenditure that may be treated as DRE. It makes clear the list is not exhaustive. Section 41 of Annex C says “[t]he care plan may be a good starting point for considering what is necessary disability-related expenditure. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support.”
68. The Council’s Disability Related Expenditures Practice Guidance builds on the statutory guidance. Section 3(a) of this guidance says staff should “[r]emember the DRE must reflect the extra cost to the individual of meeting a particular need as opposed to the cost that anyone without a disability would incur in the course of daily life.”
69. When she completed her financial assessment form in March 2019, Mrs G asked for a number of expenses to be taken into account as DRE for Miss H. These included costs for:

• A cleaner to attend the property once per week as Miss H’s MS meant she was unable to clean the property;
• A weekly laundry service due to incontinence caused by Miss H’s MS;
• A weekly ironing service;
• Regular garden maintenance;
• A weekly hairdresser visit for washing and drying Miss H’s hair as her diagnosis left her unable to lift her arms;
• Equipment costs (such as for a wheelchair, scooter, a perching stool and incontinence protection for Miss h’s bedding);
• Additional heating due to Miss H being largely house-bound;
• Home broadband; and
• Additional fuel so Miss H could attend hospital appointments.

70. On 27 March 2019, the Council reviewed Mrs G’s DRE submission. The reviewing officer agreed that the additional laundry and heating costs incurred by Miss H were a direct result of needs arising from her disability and should be included as DRE.
71. However, the reviewing officer found the other expenses should not be treated as DRE. She concluded that some of the claimed expenses (cleaning and hair washing) should be considered eligible needs and included in Miss H’s care and support plan. The reviewing officer declined to accept the other expenses for the following reasons:

• It was Miss H’s decision to use an ironing service and other options (such as a table-top ironing board could be considered.
• There was no evidence to suggest Miss H required garden maintenance to maintain access to the property.
• Miss H could be referred to appropriate services (such as an Occupational Therapist) if she required additional equipment.
• Miss H’s need for broadband was not specifically linked to her disability.
• Miss H’s transport to and from hospital appointments would need to be paid from the mobility component of her Disability Living Allowance.

72. Mrs G disputed the Council’s findings on her DRE claims. The Council completed a further review on 15 April 2019. This upheld the previous decision. Shortly after this, Mrs G asked the Council to suspend Miss H’s care package on the basis that she could not afford to pay the assessed contribution.
73. It is important to be clear that it is not for the Ombudsmen to make a determination on what expenses the Council should, or should not, treat as DRE. Rather, this is a decision for the Council to make, with reference to relevant legislation and guidance.
74. In my view, the evidence shows the Council appropriately considered the provisions of the Care Act, statutory guidance and Regulations in making a decision on Mrs G’s submissions. On this basis, I am satisfied the Council’s decision was made without fault, albeit I appreciate Mrs G does not agree with the Council’s conclusions.

Injustice

75. The evidence shows Miss H’s care coordinator first requested a Care Act assessment for her in January 2017. This was not completed until July 2018, around 18 months later. There was then a further delay of almost six months before a care package was put in place. This meant Miss H, who was a vulnerable adult was left without proper care and support for two years. This caused her significant distress.
76. This in turn affected Mrs G, who was required to provide care and support to Miss H that should have been provided by the Council. This caused her distress. Mrs G was also put to unnecessary time and trouble as she attempted to arrange appropriate care for Miss H.
77. In my view, there was a lack of clarity around how Miss H’s care package would be funded. I found no evidence to suggest this, or the charging process more generally, were clearly explained to Mrs G or Miss H until February 2019. The delay in carrying out a financial assessment meant an opportunity was missed to provide clarification at a much earlier stage. This caused avoidable confusion for Mrs G and Miss H that added to their distress.
78. The Council has agreed to take action to remedy the outstanding injustice to Mrs G and Miss H. This is detailed below.

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Agreed actions

79. Within one month of my final decision statement, the Council will:

• Apologise to Mrs G and Miss H for its failure to complete a Care Act assessment for Miss H within an appropriate and reasonable timescale as required by the statutory guidance.
• Apologise to Mrs G and Miss H for its delay in completing a financial assessment for Miss H and its failure to clearly explain the care charging process to them.
• Waive Miss H’s outstanding care fees in their entirety.
• Pay Miss H £250 in recognition of the distress she experienced as a result of these failings in her care.
• Pay Mrs G £500 in recognition of the distress she experienced as a result of these failings, and the additional time and trouble she was put to pursuing care for Miss H.

80. Within three months of my final decision statement, the Council will review its service delivery model to ensure organisations providing services on its behalf provide care and support that is in keeping with the requirements of the Care Act 2014 and the supporting statutory guidance. This review will:

• Ensure there is a robust procedure in place for carrying out Care Act assessments, particularly for service users with complex health and social care needs.
• Ensure there is a clear process in place for sharing relevant care charging information with service users and their carers and families.
• Ensure there is a clear process in place for requesting and arranging timely financial assessments for service users with eligible needs.
• Ensure there is a robust escalation process in place to consider cases where there is disagreement between the organisations involved as to which agency should provide services. This should allow for prompt resolution of disputes. This process should also identify whether an organisation providing services on the Council’s behalf requires additional support.
• Ensure staff providing services on the Council’s behalf are appropriately trained in the requirements of the Care Act 2014 and the accompanying statutory guidance.

81. The Council will write to the Ombudsmen with the outcome of this review, detailing what action it will take to improve its procedures. The Council will also explain how it will audit and monitor compliance with the service delivery model on an ongoing basis.

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Final decision

82. I found fault by the Council with regards to its delay in completing a Care Act assessment for Miss H.
83. I also found fault by the Council with regards to its delay in completing a financial assessment for Miss H and its failure to properly explain the charging process to Mrs G.
84. This fault caused Mrs G and Miss H significant distress. In my view, the further actions the Council has agreed to undertake a reasonable and proportionate remedy for this injustice.
85. I have now completed my investigation on the above basis.

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Investigator's decision on behalf of the Ombudsman