Decision : Upheld
Decision date : 21 Jul 2016
The Ombudsman's final decision:
Summary: The Council’s assessments of Ms J’s care and support needs were flawed, so she has not had enough support at home for nearly a year. The Council should carry out a new assessment, and pay Ms J £500 to acknowledge that her life has been more difficult than it should have been for nearly a year.
- Ms J complains the Council has failed to take account of all relevant information in assessing her care needs and how they should be met.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))
How I considered this complaint
- In reaching my view I have considered the information Ms J sent with her complaint. I have also considered the comments and documents provided by the Council in response to my enquiries. I have given both Ms J and the Council the opportunity to comment on the draft decision.
What I found
- The Council must carry out an assessment for any adult appearing to need care and support. 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. (Care Act 2014, sections 9 and 10)
- The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs. Not all needs are eligible for support and the needs must arise from or be related to a physical or mental impairment or illness. Because of the needs, the adult must be unable to achieve at least two of the key outcomes, which include:
- Managing and maintaining nutrition
- Being appropriately clothed
- Maintaining a habitable home environment
- Accessing and engaging in work, training, education or volunteering;
- Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
- What the person has
- What they want to achieve
- What they can do by themselves or with existing support
- What care and support may be available in the local area.
Events leading to the complaint
- Ms J has a visual impairment. When she moved to the Council’s area, the Council assessed her care needs and her eligibility for services. The Council agreed to carry out a mobility assessment and made referrals for community support. Ms J had had a greater level of support from her previous local authority.
- In March 2014 the Council completed its assessment of Ms J’s needs. It decided she needed help with:
- Organising clothes, so she could dress appropriately
- Organising food, so she did not eat food past its use-by date
- Some of her shopping
- Help Ms J scan documents, deal with post (including emails), and use the internet
- Sort clothes, so Ms J did not wear stained or inappropriate clothing
- Tidy up Ms J’s home, to reduce the risk of falls
- Check the contents of Ms J’s fridge
- Read cooking instructions to Ms J
- Occasionally escort Ms J to a local shopping centre.
- A local charity was helping Ms J with administrative tasks, and could make a grant for assistive technology to help Ms J access the internet
- Care Act outcomes on dressing did not require clothes to match or be clean
- Ms J could make more use of long-life foods, her freezer, and ready meals.
- It was wrong to say Ms J did not need support with administration, while also saying a discretionary grant for assistive technology would provide this support
- The Council’s view on Care Act outcomes on dressing was too restrictive
- Dependence on long-life foods and ready meals was not consistent with a meaningful interpretation of independent living and well-being
- It was not clear how the Council had calculated the figure of 1.5 hours a fortnight.
May 2015 assessment
- The Council was wrong to respond to Ms J’s request for direct payments by tying this in with a review of her care and support needs. The Council’s response to such a request must be clear and swift. Undertaking a review which its records show it did not complete until August was neither.
- The Council also failed to acknowledge that Ms J was, at that point, dissatisfied with the support the care agency workers were providing to her as it did not meet her needs. The care agency’s description of the tasks its workers were doing is consistent with Ms J’s complaint but the Council did not explore this.
- The Council’s assessment of Ms J’s care and support needs was flawed because:
- It did not recognise how Ms J would manage if she was not successful in getting a grant for assistive technology
- It failed to recognise the importance to Ms J’s personal dignity of wearing clean, presentable and appropriate clothes
- It failed to recognise that fresh food is essential to meet nutritional needs, and consumption of fresh food once it has started to perish carries a significant health risk.
November 2015 assessment
- This assessment was flawed in the same ways as the May 2015 assessment. It also failed to provide a rationale for the calculation of 1.5 hours of support.
- As a result of these flaws, Ms J:
- Was without any support at all between June and December 2015
- Is likely, on the balance of probabilities, to have had insufficient support after that date
- Is likely, on the balance of probabilities, to have insufficient support in place going forward.
- We cannot be certain how much support Ms J should have until the Council has carried out a new assessment of her needs which properly meets the requirements of the Care Act 2014 and good administrative practice. This remedies matters for Ms J going forward. But the Council also needs to acknowledge the impact on Ms J of the faults I have identified.
- The Ombudsman expects councils to treat people fairly and with respect, and not to expose people to unnecessary distress as a result of actions or inactions. Such injustice cannot generally be remedied by a payment, so the Ombudsman usually recommends a symbolic amount to acknowledge the impact of fault. A remedy payment for distress is often a moderate sum of between £100 and £300. Where the distress was severe or prolonged, up to £1,000 may be justified. LGO Guidance on good practice: remedies (January 2016)
- In this case, Ms J’s life has been more difficult than it should have been for nearly a year. This is a long time, which justifies more than a moderate payment.
- To put right the injustice arising from the faults I have identified, the Council should, within three months:
- Apologise to Ms J for not assessing her needs properly
- Put in place the support she needs to manage direct payments
- Carry out a new assessment of her care and support needs without delay
- Pay Ms J £500 to acknowledge the impact of its fault
- Check that other service users have not been similarly affected by flawed assessments.
- I have completed my investigation and uphold Ms J’s complaint. Fault by the Council caused her injustice. The Council has agreed to take action which satisfactorily remedies this.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman