Brighton & Hove City Council (15 017 591)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 30 Aug 2016

The Ombudsman's final decision:

Summary: The Council was at fault in the way it dealt with Miss X’s request for support. It will reconsider how her eligible needs could be met, ensuring this is achievable, review its scrutiny panel’s role and ensure staff are aware of its purpose. It will also pay her £250.

The complaint

  1. The Complainant, whom I shall refer to as Miss X, complains that the Council:
    • Declined funding for the support she needed; and
    • Failed to understand her condition.
  2. Miss X says she went to much trouble to go through the assessment procedure and this was wasted time. She would like the procedure shortened and Council staff to be better informed about her condition.

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The Ombudsman’s role and powers

  1. 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))

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How I considered this complaint

  1. I considered information from Miss X and from the Council.
  2. I sent both parties a copy of my draft decision for comment.

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What I found

  1. The Care Act 2014 (the Act) came into force in April 2015. Some of the main duties it places on councils are:
    • Promotion of wellbeing
    • Promotion of integration of care and support provision
    • Prevention, delay, and reduction of needs
    • Provision of information and advice
    • Meet eligible needs
  2. The Act says when councils assess someone’s needs they must consider any fluctuating needs. This means needs which may not be apparent during the assessment but which have been an issue before and are likely to be so again. It also says that councils should consider the person’s strengths and capabilities.
  3. The statutory guidance to the Act says local authorities should refrain from “using panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons” (10.85).
  4. “Delivering Care and Support Planning; supporting implementation of the Care Act 2014” was commissioned by the Department of Health in partnership with the Local Government Association and the Association of Directors of Adult Social Services. The report says:
    • The use of panels for every care and support plan is “overly bureaucratic and complex”.
    • Councils should aim for panels to be used as an exception, “if at all”.

What happened

  1. Miss X has a debilitating condition which varies from day to day. It impacts on her ability to carry out daily activities.
  2. On 13 October 2015, the Council carried out an assessment of Miss X’s needs and completed a care and support plan. This stated that Miss X had eligible needs and that she would receive a personal budget by direct payment for support three times a week with showering, washing her hair and dressing afterwards. Miss X explained that the impact of her condition had worsened over time and that she had more difficulty in winter months. She said she thought she might only need help once a week but possibly more in the winter. The care manager said that if Miss X was to receive attendance allowance, she would be expected to use this to pay privately for cleaning. She also noted that Miss X would like to attend a yoga class for people with her condition but was waiting for a course that was convenient for her to attend.
  3. Miss X declined an occupational therapy assessment to look at equipment and aids, she also declined telecare. She accepted a referral for support with her benefits. The care manager referred Miss X to a crisis support service and she received two weeks’ support with personal care.
  4. On 24 November, the care manager noted the operations manager had refused for Miss X’s case to be presented to the “Funding Panel”. This was because on some days she was independent as her condition varied.
  5. Miss X found she was not eligible for the attendance allowance benefit.
  6. On 8 December, the care manager noted that she presented Miss X’s case to the “Funding Panel” and the panel declined funding. The panel said that although Miss X struggled to complete her personal hygiene she generally managed to do this. The panel suggested she attend yoga, pay a hairdresser to wash her hair and for the care manager to refer her to the community navigators to see what activities might be available in her area.
  7. Miss X says she cannot afford to pay for the help she needs with laundry, housework and hair washing. She says she has lived in the area many years and knows what goes on; she just cannot get there. She also has practiced yoga for many years but cannot do so now due to pain. She believes the Council has failed to understand the impact of her health condition on her day to day life. The care manager advised her she would not have to pay a contribution to her support. This suggests Miss X might not be able to afford to arrange these privately.
  8. In January 2016, the Council responded to Miss X’s complaint. It said it set up a “scrutiny panel” to ensure compliance with the Care Act 2014 and to ensure it delivers formal support in the most cost effective way. It said she had been given advice on keeping warm after showering and that it would not wish to encourage people who can cope independently to become reliant on others. It said the Care Act approach aims to protect the person’s independence and resilience.

Was there fault which caused injustice?

  1. The Council was right to state the Care Act approach aims to protect the person’s independence and resilience. However, it also requires councils to prevent, reduce and delay needs and ensure eligible needs are met.
  2. The assessment specified that Miss X needed support to meet some of her eligible needs especially around showering and washing her hair. The care manager was clear that the request had to be submitted to a funding panel; she did not mention a scrutiny panel. This panel decided Miss X did not need the support the care manager had identified and suggested unworkable and inappropriate alternatives.
  3. I am not persuaded that this panel was purely looking at compliance with the Care Act and cost effectiveness. If this was its remit, it failed to do this adequately. It is possible Miss X’s needs could be met in other ways but with proper care and support planning in consultation with Miss X. Not through a decision in direct contravention of the care manager’s recommendations by a panel who was not involved in the assessment. I found the Council was at fault in the way it dealt with this “funding application”.
  4. Because of the Council’s failure to properly consider the care and support planning for Miss X she was without support she was assessed as needing throughout the winter months when she needed it most. This caused Miss X an increased risk of harm and lost opportunities for almost one year. Miss X does not report any serious consequences of this and so the injustice is fortunately limited.
  5. I found the Council was therefore at fault when it declined funding for Miss X’s care package and failed to understand her condition. This caused Miss X injustice as described above.

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Agreed action

  1. I recommend the Council takes the following action to put right the injustice it caused to Miss X within eight weeks of my final decision:
    • Pay Miss X £250 in recognition of the increased risk of harm and lost opportunities it caused.
    • Complete a review assessment and a revised care and support plan. This should clearly address any fluctuating needs and any cost implications to Miss X.
    • Review the scrutiny panel’s role and ensure staff and the panel are clear of its purpose.

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Final decision

  1. I have completed my investigation and upheld Miss X’s complaint. The Council was at fault and caused Miss X injustice. I am satisfied the action I have recommended will put this injustice right.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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