Decision : Upheld
Decision date : 29 Mar 2019
The Ombudsman's final decision:
Summary: Mr B complains about the Council’s assessment of his needs, lack of advocate and lack of care provision. The Ombudsman acknowledges that the Council has offered assessments and advocacy in the past but this depends on Mr B’s engagement with the offered services. However, there was fault in the records and lack of care plan and more recently, in the lack of advocacy. The Council has agreed to offer Mr B an advocate for a re-assessment of his needs and then provide the documents it should have provided under the Care Act.
- Mr B says:
- The Council has not provided him with an advocate.
- The Council has not properly assessed his needs for care and support and his care plan does not meet his needs.
- The Council held a meeting with him and promised him at that meeting that he would be able to review the assessment, but he was not given a chance to review the assessment.
- He cannot afford the financial contribution the Council wants him to pay.
- The Council has not investigated the complaint he has made about the disrepair, damp and noise in his building.
What I have investigated
- I have investigated Mr B’s complaint about his care package and advocacy. Paragraphs 71 to 72 explain why I have not investigated complaints about events in 2016 and earlier and complaints about his property.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
How I considered this complaint
- I have discussed the complaint with Mr B and his representative. I have considered the documents he and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.
What I found
- The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s duties.
- The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the costs of those services.
- An adult with possible care and support needs may refuse to have an assessment. In these circumstances, local authorities do not have to carry out an assessment.
- If a person has substantial difficulty in being involved in the process, the council must provide them with independent advocacy to assist the person’s involvement in the care and support assessments, planning and review process.
- Local authorities should review a care and support plan at least every 12 months.
- Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs.
- Where a local authority has decided to charge, it must carry out a financial assessment of what the person can afford to pay. Councils must ensure that a person’s income is not reduced below a specified level (the minimum income guarantee) after charges have been deducted.
- If a council takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, they must also assess disability-related expenditure (DRE) in the financial assessment. This is because the Care Act statutory guidance says councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council. DRE are costs that arise from a disability or long-term health condition.
- Direct payments are a means of paying some or all of the personal budget to the person who then arranges their own care and pays for it.
Chronology from 2017
- I have investigated Mr B’s complaint from 2017 onwards, but may refer to events from earlier dates if they are necessary to understand the complaint.
- B has physical disabilities and suffers from chronic pain. He receives a package of care from the Council. His most recent care plan is dated from 2014. This says he is entitled to 31 hours a week to pay for carers who support him with all aspects of ‘personal care, domestic, shopping, appointments and cooking.’ There is no further breakdown on how this care is delivered. Mr B receives direct payments so he hires his carers and pays them. The plan is based on an assessment of Mr B’s needs of the same date.
- The Council sent a letter to Mr B in April 2016 and said the weekly cost of his care package was £337 and his weekly contribution was £50.
- The notes show that the council allocated Mr B a new social worker in August 2016, but Mr B would not agree a date for the assessment. In January 2017, the social worker asked that the case was de-allocated until Mr B was ready to engage with the assessment. Mr B agreed with the case closure. He said he had a rapport with the social worker and wanted the case to be reallocated to her when he was ready for a reassessment in the future. The Council closed the case and wrote to confirm this to Mr B.
- Mr B rang the Council on 1 February 2017 and said he wanted the care review to take place. The manager authorised Mr B’s budget but said that this was on the condition that Mr B agreed that a review would take place.
- The Council had made a referral to an advocacy agency to support Mr B in the assessment process.
- The social worker chased the advocacy agency on 15 February 2017 and the advocate said she would contact Mr B. The advocate emailed the Council on 17 February 2017 and said she had called Mr B on his landline and his mobile but he had not responded.
- The Council set up a date for the review in March. The advocate contacted the Council on 21 March 2017 and said she had tried to contact Mr B but had had no success.
- A date was set for the social worker and the occupational therapist to carry out a joint visit to Mr B on 6 April 2017 to carry out the assessment. Mr B was not at home and did not answer his mobile.
- A new date was set for 28 April 2017. This time Mr B was at home, however he had an emotional and negative reaction to the social worker’s visit. The social worker therefore had to leave without carrying out the assessment. The OT started an assessment, but was unable to complete it.
- The OT ordered some equipment for Mr B following the visit on 28 April 2017. She contacted Mr B on 24 May 2017 to arrange a date to deliver the equipment but Mr B did not answer his phone.
- The Council wrote to Mr B on 31 May 2017 to inform him that his weekly financial contribution had increased to £83. The main reason for this increase was that Mr B’s benefit income had increased as he stopped receiving severe disability allowance and disability living allowance and started to receive ESA and personal independence payments.
- Mr B rang the Council on 12 June 2017 and asked for a new financial assessment. The duty social worker gave him the number for the Awards and Contributions Team who could carry out the assessment.
- Sometime in June 2017 the social worker visited Mr B and carried out the assessment. There is no record of this visit in the records and the date is not known. However, the Council has confirmed it took place and I accept it did as this is the visit Mr B complains about.
- The Council sent the assessment to Mr B but did not provide him with a care plan or a personal budget linked to the care plan. The assessment said Mr B wanted more hours of support to access the community, but the Council did not agree the extra hours. Mr B continued to be entitled to 31 hours support a week.
- The OT made several attempts in June and July 2017 to set up a further visit, but Mr B did not respond.
- Mr B’s friend called the Council on 12 July 2017 and said Mr B was ready to continue with the OT assessment. Mr B’s social worker had left the Council and Mr B wanted the Council to allocate a new social worker to him.
- The Council spoke to Mr B’s carer on the same day and explained that the previous social worker had carried out an assessment and that the care package would not be increased.
- There was a note for August 2017 that the OT was leaving the Council. The note said that Mr B had contacted the OT numerous times asking for an assessment and the OT had then replied but had not received any reply from Mr B.
- Two OT appointments were agreed for October and December 2017, but Mr B cancelled both appointments as he was not feeling well. The OT closed the case because of Mr B’s lack of engagement.
- The Council contacted the advocacy agency again on 10 January 2018 and asked them to contact Mr B.
- The OT spoke to Mr B on 25 January 2018. Mr B said he would not meet anyone from the Council unless an advocate was present. Mr B said he would speak to the advocate and then, once he had met the advocate, would schedule the OT appointment. The OT agreed and said she would wait for Mr B to get in touch.
- The OT contacted Mr B again on 8 March 2018 as she wanted an update on what was happening. Mr B spoke to the OT on 21 March and said he had been waiting for over a year for an advocate and still did not have one.
- In March 2018, the OT recommended an adapted toilet to be installed to Mr B’s flat which was fitted in August 2018.
- In November 2018, the Council contacted the advocacy service which previously worked with Mr B for the annual review of Mr B’s care package. The advocacy service said that it did not think that Mr B needed an advocate as he had friends who could represent him and did not have substantial difficulty in being involved in the review process under the Care Act.
- Mr B asked for a financial re-assessment in November 2018. The Council’s finance team attended Mr B’s home and carried out the re-assessment and Mr B’s contribution was reduced to £69 a week. The Council agreed to backdate this to May 2018 as it said it had promised Mr B a visit by its finance team to re-assess his finances in May and then had not delivered it.
- I have summarised Mr B’s complaints that I am investigating and the Council’s replies.
- In September 2017 Mr B said:
- The Council had failed to assess him for over two years.
- He was unable to pay the weekly contribution towards his care.
- He was not given the chance to review his assessment, but was presented with a final report that contained a lot of inaccuracies.
- The social worker was allocated the case in August 2016 but closed the case in January 2017 as he would not engage with an assessment. Mr B agreed with the closure of the case and said he would let the Council know when he was ready to engage. Mr B engaged with an assessment once it was made clear to him the Council may need to suspend direct payments. Even after the social work assessment, it was then difficult for the OT to complete their assessment. It said that Mr B would ask for an assessment and complain about a lack of assessment but then not engage with an assessment.
- Mr B could ask for a review of his financial assessment if he needed this.
- He had been promised that he would be given a chance to review his most recent assessment before it was signed off. He wanted to give the Council further information such as his PIP report, but the report was completed without this.
- He was unable to access advocacy.
- He could not engage with the OT as he did not have advocacy.
- He had still not received a financial assessment.
- The OT assessment had been completed and the adapted toilet was installed.
- The PIP report would not have directly influenced the social worker’s assessment, but he could provide any information including medical information at the next assessment which was due next month.
- The outcome of the most recent assessment was that the care plan met his needs but this would be reviewed on a yearly basis.
- The Council would make a referral to its Awards and Contributions team who would carry out a review financial assessment to see if there were any disability related expenses which affected his contribution.
- The Council would provide a referral to an advocate.
- I have focussed my investigations on the Council’s actions from January 2017.
- The investigation is made more difficult by the fact that Mr B complains about the Council’s failure to carry out assessments, but these assessments depend on his cooperation. I cannot criticise the Council if it has tried to carry out assessments, but failed to do so because Mr B would not engage.
- The second difficulty is the Council’s records which are not detailed or in line with the Care Act in certain instances.
- Mr B says the Council has not offered him an assessment of needs or assessed his needs and has not offered him an advocate.
- The records show the Council closed the case in January 2017 with Mr B’s agreement as he would not engage with an assessment. In February 2017, Mr B said he was ready to engage with the assessment. The social worker and the OT spent many months trying to engage with Mr B who then failed to respond and was not there when the social worker attended his property. The social worker carried out the visit in June 2017 and assessed Mr B.
- Therefore, I find no fault with the Council’s actions up to that point as it was clear that the Council tried to assess Mr B between January and June 2017.
- There is no record of the visit in June 2017 when the social worker assessed Mr B therefore I cannot say whether she promised him that he would have a chance of reply before the final care plan was agreed. There is also no care plan or personal budget following this assessment. It appears the social worker carried out the assessment in June and then left the Council. When Mr B then tried to challenge the assessment and the hours he received per week for socialisation, the Council said the decision had been made.
- There is some fault in the Council’s actions at this stage. Firstly, there is fault in the poor records it kept. I am particularly concerned that the most recent care plan dates to 2014 and does not set out the detail on the hours of support Mr B receives. There is no personal budget which links back to the care plan.
- The guidance says a person should have a care assessment, care plan and personal budget. The care plan should set out clearly how a person’s needs will be met. This is not the case in Mr B’s records. There should also have been a record of the June 2017 visit.
- Secondly, the Council should have given Mr B a chance for comment on the care plan. This may not have made any difference in terms of the provision in the care plan, but at least he should have been given the chance and a care plan should have been produced.
- In terms of the advocacy, I find no fault in the lack of advocacy during the June 2017 assessment as the Council organised an advocate for Mr B but he did not engage with her.
- However, the Council said in its letter dated May 2018 that it would organise an advocate after Mr B raised this in his March 2018 complaint. The Council failed to do so. Mr B needed an advocate for the recent yearly review of his needs. The Council approached an advocacy agency and when the agency disagreed that Mr B needed an advocate, the Council made no further efforts to find another advocate for Mr B and went ahead with the assessment without one.
- In my view, the Council should decide whether Mr B needs an advocate, not the agency. The Council had assessed Mr B as needing an advocate, so it should have tried to find an alternative agency to provide the advocacy. Its failure to do so is fault.
- Mr B says his care plan does not meet his needs, particularly in terms of socialisation as three hours of support a day is not enough. The problem is that Mr B is entitled to 31 hours support, but, because he disagrees with the contribution, he only hires a carer for 23 hours which is a shortfall of 8 hours a week. So therefore, this complaint is more about the contribution than the content of the care plan.
- I note the Council agrees that it was at fault in terms of the financial assessment as it promised Mr B in May 2018 that it would review his financial assessment but did not do so. The Council carried out the full financial assessment in November 2018 and has reduced the contribution because of the re-assessment. It has backdated the money to May 2018.
- The Council has repaid the underpayment from May 2018 to November 2018 which is an appropriate remedy for the delay in carrying out the financial assessment.
- I have given the Council a longer time than usual for the remedy as it depends on Mr B’s engagement with the Council.
- The Council has agreed to take the following actions within three months of the final decision. It will
- Offer an advocate to Mr B.
- Offer a further assessment of needs to Mr B with the assistance of the advocate and carry out the assessment if Mr B agrees.
- Write a care plan which sets out in detail how Mr B’s needs are met and it will provide him with a personal budget.
- I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.
Parts of the complaint that I did not investigate
- I have not investigated complaints from before January 2017 as these are more than a year old and Mr B could have complained about these matters at the time.
- I have not investigated Mr B’s complaints about the disrepair and noise in his flat. Complaints about the provision and management of housing should be directed to the Housing Ombudsman.
Investigator's decision on behalf of the Ombudsman