London Borough of Lambeth (17 005 393)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 25 Nov 2019

The Ombudsman's final decision:

Summary: Mrs B complains the Council delayed in assessing her needs and completed an inadequate assessment which did not properly reflect her needs. She says the Council recorded incorrect health information about her and the CCG delayed in completing a healthcare funding assessment. She says the faults caused her distress and left her out of pocket. The Ombudsmen found the Council failed to assess Mrs B promptly and this caused her uncertainty and distress. The CCG delayed its assessment and failed to calculate redress in line with government guidance and this left Mrs B out of pocket. The Council and the CCG acted to improve their processes and procedures. They have also agreed to the Ombudsmen’s recommendations and will apologise to Mrs B and pay a financial remedy.

The complaint

  1. The complainant, who I shall refer to as Mrs B, is complaining about the care and support provided to her by London Borough of Lambeth (the Council) and NHS Lambeth Clinical Commissioning Group (the CCG). Mrs B complains that:
    • the Council did not review her social care needs until October 2015, despite her requesting a review in January 2015. She says the Council advised her to contact her appointed social worker to arrange this even though she did not have one;
    • a social worker incorrectly advised her that it would not be possible to make adaptations to her flat and that she would need to move;
    • the same social worker misinformed her about the Continuing Healthcare (CHC) funding process and recorded incorrect information about her general practitioner. Mrs B says this led to unnecessary delays in the CHC process;
    • the Council’s assessment and care plan was inadequate and did not reflect her needs; and
    • the CCG delayed in completing a CHC assessment.
  2. Mrs B also says the matters she complains about also affected her carer and her adult daughter.

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The Ombudsmen’s role and powers

  1. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
  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).
  3. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
  4. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered information provided by the organisations named in this complaint and information from the complainant provided in writing and by telephone. I have also considered the law and guidance relevant to this complaint.
  2. The complainant, the Council and the CCG were given an opportunity to provide comments on a draft of this decision.

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What I found

Legislation and guidance

  1. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
  2. An assessment should be carried out over an appropriate and reasonable timescale considering the urgency of needs and a consideration of any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process.
  3. Section 27 of the Care Act 2014 gives an expectation that councils should conduct a review of a care and support plan no later than every 12 months. A light touch review should be considered six to eight weeks after the plan and personal budget have been agreed. The review should be performed in a timely manner proportionate to the needs to be met. In addition to the duty on councils to keep plans under review generally, the Act provides a duty on councils to conduct a review if a request for one is made by the adult or a person acting on the adult’s behalf.
  4. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare. It states that where an individual is eligible for Continuing Healthcare funding the CCG is responsible for care planning, commissioning services and case management.
  5. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. The threshold for meeting the CHC Checklist is set low.
  6. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making. The DST should be completed within 28 days of the CHC Checklist unless there are ‘valid and unavoidable’ reasons for it taking longer.
  7. The DST makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care, which is set at a weekly rate. The relevant CCG will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.
  8. With a Personal Health Budget people who are entitled to CHC can get their funding for both health and social care as a personal budget with which they can buy the care they need. This can be through direct payments. CCGs must ensure people who get a PHB have access to information and advice.
  9. The NHS Continuing Healthcare Refreshed Redress Guidance is to assist Clinical Commissioning Groups (CCGs) when settling claims for individuals in respect of NHS Continuing Healthcare. Claims may arise from eligibility decisions or where an eligibility decision has been reached on a previously un-assessed period of care and the need for redress has been identified.
  10. Redress is about placing individuals in the position they would have been in had NHS Continuing Healthcare been awarded at the appropriate time and not about the NHS or the public profiting from public funds. CCGs are advised to apply the Retail Price Index for calculation of compound interest when considering redress cases. The index is calculated monthly, with an average for each calendar year. CCGs are advised to apply the average rate for the year for which care costs are being reimbursed.


  1. Mrs B suffers from several chronic health problems which include periodic paralysis, reactive hypoglycaemia and a compromised immune system. She says these conditions are debilitating and can result in long periods of illness and fatigue. Mrs B also says her condition is exacerbated by stress.
  2. The Council first became involved with Mrs B in 2010 and started to provide formal care and support via direct payments. At this time her needs were assessed under the Fairer Access to Care Services criteria and it assessed her needs as substantial. The Council said it reviewed Mrs B’s care package and needs annually up until 2013.
  3. Mrs B says she contacted the Council in January 2015 to ask for review of her needs. She said she did not receive a response, so she wrote to the Council in March and told it she had moved, her health needs had deteriorated, and she needed a reassessment because she had increased needs. Mrs B had moved to be nearer to her daughter. A letter from Mrs B to the Council dated March confirms she asked it to transfer her care package to Council G which is the area where she had moved to. The Council said it had telephone contact with Mrs B around March/April and it established she was now residing out of its area.
  4. When responding to Mrs B’s complaint the Council acknowledged it had missed opportunities to arrange for Council G to assess Mrs B’s needs in line with the Care Act 2014 and ordinary residence regulations. It also said it had misinformed Mrs B when she was told she had an allocated social worker but did not. Mrs B said she found this frustrating as she did not know who to speak to about her care and support.
  5. Mrs B said during the period she had asked the Council to reassess her needs her health was unstable and she went into hospital regularly. She said she moved back to the Council’s area because this was where her specialist health team was based.
  6. After Mrs B moved back to the Council’s area in September it arranged to reassess her needs and completed an assessment in October 2015. Mrs B said she also spoke to the assessor about adaptations to her home but was told these could not be completed. The assessment document notes an occupational therapy referral was required for further assessment. The assessment also referred to contacting Mrs B’s clinician about a medical review.
  7. The Council decided Mrs B was not eligible for financial support because she had savings and assets over the capital limit of £23,250. Mrs B’s appeal against the Council’s decision was unsuccessful.
  8. Mrs B’s general practitioner (GP) wrote to the Council in December in support of her application for NHS continuing care (CHC). The letter said the GP understood the care review was in progress. The letter provided important information about Mrs B’s health conditions and how this affected her. In summary, the GP said Mrs B’s required more than a domiciliary daily carer providing domestic and personal care. The GP felt Mrs B needed round the clock care from a specialised medical assistant. Th GP said, “it seems the NHS process must be triggered by the allocated social worker... as soon as you can get the NHS Continuing Care forms to me I will be more than happy to complete and return them, to expedite adequate cover for this complex patient.”
  9. The assessor contacted the GP who completed a CHC checklist and sent this back to the assessor a few days later. This was then sent to the CCG’s commissioned agent in January with a referral form for further consideration. The CCG’s agent contacted Mrs B and arranged a visit to start the assessment process in February 2016.
  10. A multidisciplinary team completed and signed a decision support tool (DST) in May. Mrs B asked for a personal health budget but the CCG did not agree this until September. While waiting for the personal health budget the CCG gave
    Mrs B a one-off payment of £3,000 and later agreed to backdate the weekly cost of the agreed care plan to the date the multidisciplinary team signed the DST.
    Mrs B said the CCG only did this after she threatened to take legal action.
  11. Mrs B made complaints to the Council and the CCG about the care and support planning process which relate to adult social care and NHS CHC.


Delays in the Council’s care and support planning process

  1. The Council said it reviewed Mrs B’s care arrangements annually from 2010 to 2013. I have not seen evidence to show it completed a review of Mrs B’s care in 2014 and this is fault. The Council did not proactively contact Mrs B in 2015 to review her needs. Although Mrs B contacted the Council to ask for a review in 2015 it delayed in doing so and this is fault.
  2. There is no evidence which suggests Mrs B contacted the Council before she moved from its area. If she had done so it may have helped matters. For example, the Council could have contacted Council G in advance before she moved. Nevertheless, once Mrs B told the Council she had moved it should have acted promptly to contact Council G and asked it to assess Mrs B’s needs and then arrange to transfer her care in line with the Care Act 2014.
  3. When responding to Mrs B’s complaint the Council accepted it had missed opportunities to review and transfer her care and support arrangements on more than one occasion. It also accepted it told her she had an allocated social worker when she did not. It apologised to Mrs B for this and for also telling her she had an allocated social worker when she did not. However, the Council’s apology does not remedy the injustice caused.
  4. Mrs B says she asked the Council to review her needs as early as January 2015 and there is evidence to show she made a request two months after this date. The evidence available shows the Council did not review Mrs B’s needs until seven months after it received her letter. Once it had completed this review it decided Mrs B needed to pay the full cost of her care. It also decided she should be referred to the CCG so it could consider Mrs B’s eligibility for healthcare funding.
  5. Mrs B says the Council delay to complete the CHC checklist was intended to deliberately sidestep their statutory responsibilities. Mrs B referred to legislation which predates the Care Act 2014. The relevant legislation is the Care Act owing to the time events took place. The Council’s responsibility to complete a financial assessment and the action needed to complete the CHC checklist are two separate processes. Even if the Council’s finance team was aware the CHC process was underway this would not have led to a different decision or delayed the decision to withdraw funding in line with social care legislation. This is because the decision to withdraw funding was based on Mrs B’s finances rather then her health or social care needs.
  6. The information provided by the Council about the financial assessment satisfies the Ombudsmen that there is no fault in the way it decided Mrs B had to pay the full cost of her care.
  7. Mrs B said if the Council had reviewed her needs promptly after she had asked it to do so in March 2015 then she would have been eligible for healthcare funding sooner. She feels this may have meant she would not have had to pay for extra care when her needs increased. I cannot say whether Mrs B would have been eligible for healthcare funding earlier because she was not assessed by the CCG until 2016. The Council’s delay means Mrs B is left with uncertainty about whether she would have been eligible for healthcare funding sooner. If Mrs B feels she should have been eligible for healthcare funding sooner, she can ask the CCG to complete a retrospective assessment for the unassessed period of care.
  8. In response to the draft decision Mrs B provided evidence to show the assessor took pictures of her home. In an email dated 2 November 2015 the assessor said “I have spoken to one of the OT’s in the Integrated Disability Team and shown the layout pictures I took of your home. They have stated it would be better to move due to the layout of the front door and the angle of this and much space to provide a ramp leading into the kitchen…”. This means the Council provided
    Mrs B with misleading information. This is fault.
  9. The assessor agreed to refer Mrs B to an occupational therapist in response to the discussion about adaptations. The Council confirms the assessor did not refer Mrs B to an occupational therapist and this is fault. The assessor should have referred Mrs B to an occupational therapist for further assessment. In any case, Mrs B later found out her home could be adapted and had work completed to make it more accessible.
  10. I have considered whether the misleading information meant Mrs B was denied access to a grant to adapt her home. On balance, it is likely that Mrs B would not have been eligible for a grant following a means test because of her savings. However, fault by the Council is likely to have caused Mrs B time, trouble and inconvenience.
  11. Mrs B says the Council’s assessment was inadequate and did not properly reflect her needs. I agree it is likely the social care assessment completed did not reflect all her needs at the time the assessment was completed. This is because it is likely Mrs B’s needs were predominately health related and not just social care needs.
  12. There is no evidence to show the assessor proactively sought the view of Mrs B’s clinician as the assessment document suggested would happen. The assessor only received further medical information after Mrs B’s GP wrote to the Council in
    December 2015 about her deterioration in health. The Council should have proactively sought the information from Mrs B’s GP given the information in the assessment which highlighted Mrs B’s health problems. The fact that it did not is fault.
  13. Mrs B did not receive the assessment document until 2016 so, it is unlikely she would have known what information was in the assessment until then. Therefore, I find any injustice caused by the delay by the Council is limited. The later assessment completed by the CCG considered all of Mrs B’s needs.

The Council’s and CCG’s involvement in the CHC process

  1. When the Council completed the assessment of Mrs B’s needs it was likely the information Mrs B provided was enough to prompt completion of a CHC checklist. Mrs B says the assessor agreed to complete a checklist but failed to do so. The National Framework says the CHC checklist can be completed by either a health or social care professional. I cannot find evidence to show why the assessor did not complete the CHC checklist promptly following the assessment. Therefore, I find the Council at fault.
  2. The letter from Mrs B’s GP confirms it was the GP who suggested completing the checklist to expedite matters because of concerns about Mrs B’s safety. Once the assessor sent the CHC checklist to the GP it was completed and returned to the Council promptly in December. The CCG’s commissioned agent did not receive the CHC checklist until mid-January 2016, but this was likely because of the holiday season. Had the Council acted sooner it is likely the GP would have completed the CHC checklist and the referral form sooner and this could have been sent to the CCG’s commissioned agent earlier. The delay by the Council is likely to have caused Mrs B avoidable frustration and distress at a time when she had increased needs she was struggling to meet.
  3. The CCG received the checklist in January 2016, but it did not complete the DST until about four months later. The CCG did not complete the DST within 28 days in line with the National Framework. This is fault. The CCG then took about three months to agree the personal health budget. However, before Mrs B complained to the Ombudsmen it acted to remedy the injustice caused by its delay by making a payment to her which covered the period 16 May 2016 to 31 August 2016. It also apologised. When it made this payment it did not do so in line with the Refreshed Redress guidance. This means it did not apply compound interest to the payment as the guidance says should happen. This means Mrs B continues to experience injustice as she is left out of pocket.
  4. Although the CCG backdated the payment to May 2016 it did not account for its delay in completing the DST within 28 days as prescribed by the National Framework. This is fault. When responding to the Ombudsmen’s enquiries the CCG acknowledged the DST took longer than the timeframe stipulated in the National Framework. To remedy the injustice this causes to Mrs B the CCG is prepared to make a payment for care costs incurred by Mrs B for the period
    16 February 2016 to 15 May 2016. The CCG says it will make the payment in line with the Refreshed Redress Guidance subject to Mrs B providing evidence of expenditure.
  5. The action proposed by the CCG is encouraging. However, the fault occurred over three years ago and Mrs B may not have evidence of expenditure due to the passage of time. The CCG accepts Mrs B had a primary health need from
    16 February 2016 and is already aware of what her care should have cost as it agreed the personal health budget. The CCG should calculate the redress based on the cost of the care package it agreed rather than putting Mrs B to further time and trouble.

Consideration of how the faults affected Mrs B’s carer and adult daughter

  1. Mrs B says the events affected her adult daughter and her carer. I have not seen evidence to show how the events affected Mrs B’s daughter except for an email written by her to the CCG about the CHC process. Although it is likely Mrs B’s daughter was concerned about the impact these events were having on her mother, I do not find she was caused a significant injustice in her own right.
  2. Mrs B said her carer was affected because the carer increased hours but did not receive the correct pay due to the delays by the CCG and the Council. She said things impacted on her carer financially. Mrs B is her carer’s employer by default because of her need for care and support. I understand issues surrounding the carer’s pay were issues Mrs B needed to deal with as an employer. Recipients of direct payments or personal health budgets should seek agreement from the funding authority before increasing the hours a personal assistant/carer may work. Mrs B felt she had no option in this case and it is likely the identified faults did not help matters.

Improvements by the CCG and the Council

  1. The CCG provided evidence to show it has acted to improve. For example, it has expanded the CHC assessment team and has put in place a new senior nursing management structure. The CCG says this aims to improve processes and to ensure CHC assessments are undertaken within the National Framework timescale of 28 days. It has also implemented an escalation process to prevent or reduce delays. The CCG monitors the arrangements with its commissioned agent via a Contract Monitoring Board.
  2. The Council has also acted to improve its processes and procedures. It has refreshed ordinary training and all team members are required to complete it online. It has provided guidance to frontline workers who provide a duty and initial contact service. It now has occupational therapists based within its Home Improvement Agency team and this means people can be referred directly to this team for an assessment and advice about major adaptations to homes.
  3. The information provided by the CCG and the Council show they have acted to improve. Therefore, it is not necessary for the Ombudsmen to make recommendations for further service improvements in relation to these matters.

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  1. The Council and the CCG have agreed to the Ombudsmen’s recommendations and within four weeks of the final decision will complete the following:
    • the Council will write to Mrs B and apologise for the uncertainty she is left with as to whether she may have been eligible for healthcare funding sooner;
    • the Council will pay Mrs B £1000 for the distress, frustration, uncertainty and inconvenience she experienced when it delayed in assessing her needs. It will pay her a further £250 for the time and trouble in pursuing this complaint;
    • the CCG will apologise to Mrs B for the injustice she experienced when she left out of pocket owing to its faults;
    • the CCG will calculate compound interest in line with the Refreshed Redress Guidance for the payment it made for the period May to August 2016 and pat his to Mrs B; and
    • the CCG will calculate and pay Mrs B redress in line with the Refreshed Redress Guidance for the period 16 February to 15 May 2016. Mrs B says this equals 13 weeks multiplied by the agreed weekly budget of £1,757.42 plus compound interest. It will also pay Mrs B £250 for her time and trouble in pursuing this complaint.

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Final decision

  1. I uphold Mrs B’s complaint about the Council and the CCG. The Council and the CCG have agreed to the Ombudsmen’s recommendations. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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