Decision : Upheld
Decision date : 27 Feb 2018
The Ombudsman's final decision:
Summary: The Council is at fault because it confused assessment of Mrs X’s eligible needs under the Care Act 2014 with questions about what support she needed and how it should be funded. As a result it is not clear what it decided Mrs X’s eligible needs were. The Council has agreed to apologise to Mrs X for the failings identified and carry out a fresh assessment of her needs. It will review its process for assessing care needs and developing care and support plans and provide training for all staff involved in this work.
- Mr Y complains about the way the Council have carried out a needs assessment for Mrs X. He says:
- the assessment does not apply Care Act 2014 criteria properly;
- the assessment does not reflect Mrs X’s circumstances and ignores her eligible needs;
- the Council has not explained why it has reduced Mrs X’s care package; and
- the Council has applied blanket policies where it should have exercised its discretion.
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 question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 considered the information provided by Mr Y on behalf of Mrs X.
- I have considered the Council’s replies to my enquiries.
- I have considered the Care Act 2014 statutory guidance, the Care & Support (Eligibility Criteria) Regulations 2014, and the Care & Support (Charging & Assessment of Resources) Regulations 2014.
- I gave the Council and Mr Y the opportunity to comment on my draft decision.
What I found
- Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person’s finances.
- The statutory guidance at part 6 says a council must consider “the total extent of a person’s needs” before it “considers the person’s eligibility for care and support and what types of care and support can help to meet those needs. This must include looking at the impact of the adult’s needs on their wellbeing and whether meeting those needs will help the adult achieve their desired outcomes”.
- After assessing the total extent of a person’s needs, the council should consider which are eligible needs under the Care Act 2014. The guidance says councils must consider whether:
- The adult’s needs are due to a physical or mental impairment or illness.
- The adult’s needs mean they cannot achieve one or more specified outcomes.
- As a consequence of being unable to achieve one or more of the specified outcomes there is, or is likely to be, a significant impact on the adult’s wellbeing.
- maintaining personal hygiene,
- managing food preparation,
- maintaining a habitable home,
- maintaining significant relationships and
- accessing the community.
- Mrs X has worsening sight as well as other serious health issues. She lives with her husband, who was diagnosed with dementia in May 2017.
- In March 2016, the Council assessed Mrs X’s care needs. It said Mrs X had eligible needs concerning personal care (help with showering). Mrs X said she also needed help with cleaning and shopping and to keep in touch with friends outside her immediate area. The Council said Mrs X could employ a cleaner privately. It said she could use taxis to visit friends now her husband was no longer able to drive.
- The Council agreed Mrs X needed a 30-minute shower call twice a week. It agreed Mrs X should attend a day centre one day per week. It cancelled the domestic support she was receiving for 4 hours per week as it said she “would only be given money to cover assessed needs”. It noted Mrs X was paying privately for help with ironing. It gave Mrs X a list of private care providers who could help with cleaning and shopping.
- In November 2016, Mr Y complained to the Council on behalf of Mrs X. The Council agreed to carry out a fresh assessment of Mrs X’s needs.
- In February 2017, the Council carried out a carer’s assessment as Mrs X now supported her husband who had his own health needs. She told the Council her caring responsibilities were mentally and physically exhausting. She said she could not get breaks from caring and felt trapped. She said she was at breaking point.
- In April 2017, the Council assessed Mrs X’s needs again. Mrs X said she:
- could manage to prepare ready-meals using the microwave but it took her significantly longer than most people.
- could maintain a habitable home but that it took her significantly longer than most people.
- did most of her shopping online but struggled to see information as her sight was worsening.
- struggled to go out on her own due to her failing eyesight.
- would like to visit friends further from home but could not do so because of her poor eyesight.
- had previously had support from her husband for some tasks but he was less able to help now and she suspected he had dementia.
- was caring for her husband and would like time out from those caring responsibilities.
- said she was managing her personal care and had cancelled the shower calls.
- had asked for support for her husband, who had been assessed separately.
- could manage to prepare ready-meals in the microwave so did not need support with this.
- would like support with cleaning and shopping but as this was non-care related support it would be charged to her at the full cost. It would be more expensive for Mrs X to access such support through the Council than arranging it privately.
- had said she could manage to visit her friend further from home although it would take her longer than others.
- could use taxis to access the local community.
- The Council assessed Mrs X’s care needs in March 2016 and April 2017. In both assessments Mrs X said she was struggling with managing and maintaining nutrition, managing personal care, maintaining a habitable home, and maintaining family or other personal relationships. Both assessments show Mrs X felt these difficulties affected her well-being. On both occasions, Mrs X asked the Council for help with shopping and cleaning.
- The guidance says councils should assess needs, then decide if those needs are “eligible” and then prepare a care and support plan to show how to meet the eligible needs. In this case, the Council has confused the three stages. It did not properly assess Mrs X’s eligible needs. It decided Mrs X was meeting some of her needs herself and excluded these from the care and support plan without deciding if these were eligible needs. This is fault.
- After the 2016 assessment, the Council cancelled Mrs X’s shopping and cleaning support. It refused to reinstate this support. It has given different and contradictory reasons for this.
- In the 2016 assessment it said a personal budget could only be for assessed care needs. It said shopping and cleaning are not Care Act needs. In the 2017 assessment it said domestic tasks and shopping must be arranged privately. In its letter to Mr Y, responding to Mr Y’s letter dated 9 May 2017, it said support was not provided for cleaning because this was a “universal need”.
- The Council accepts its use of the terms “universal needs” and “universal services” was incorrect. It also said in its reply to Mr Y that it would be more expensive for Mrs X if the Council provided such services. In its replies to my initial enquiries it said shopping and cleaning are non-care related support and were therefore withdrawn. In its replies to my further enquiries it said Mrs X could shop for food online and that her house was clean enough to be considered safe so her need was therefore below the Care Act threshold.
- The Council has not shown whether it has decided Mrs X needs for support with shopping and cleaning are eligible needs. It has not shown if it is cheaper for Mrs X to pay for this privately rather than access services through the Council. This is fault. The Council should be clear what needs it has decided are eligible needs under the Care Act.
- Further, the Council cannot say shopping and cleaning are always non-care related support needs. They are covered by the Care Act outcomes. If Mrs X is struggling to meet those outcomes and this is negatively affecting her wellbeing then these would be eligible needs. In those circumstances, the Council should consider what support she needs to meet them. It should include the cost of such support in her personal budget. The Council has decided it is not prepared to fund shopping and cleaning for Mrs X through direct payments and this is fault. This fault means Mrs X may have missed out on support she was entitled to.
- In 2016 the council agreed Mrs X should continue to get two 30-minute shower calls per week. Subsequently, Mrs X cancelled this support and said she could manage without it. Mr Y says that this meant she was unable to shower. The Council has not explained how it decided Mrs X did not have eligible personal care needs given the extent of her disabilities. Mrs X may say she will manage herself because she is concerned about the cost of care. However, given the confusion Mrs X was not able to make an informed choice about support.
- The conclusions from the Council’s carer’s assessment in February 2017are not clear. The assessment should draw clear conclusions about what support, if any, would be put in place for the carer. This lack of clarity is fault. The Council has said it offered a sitting service so Mrs X was able to go out but her husband refused to have a sitter and has capacity to make that decision. Therefore, Mrs X has not suffered an injustice because of this fault. The Council offered support but was declined by Mrs X’s husband.
- The Council will, within one month of the date of the final decision:
- Apologise to Mrs X for the faults identified;
- Commence a re-assessment of her needs under the Care Act that clearly identifies all her eligible needs in accordance the with statutory guidance.
- review its process for assessing needs and care and support planning to ensure that it is clear that staff must follow a three-stage process – to identify all needs, decide which are eligible needs, and then consider what support is need to meet eligible needs.
- Provide training for all staff involved in Care Act assessments to ensure that the new process is understood and followed, and also that staff properly consider whether a person’s disabilities mean they have eligible needs in respect of shopping and cleaning.
- I have completed my investigation. I have found fault leading to injustice.
Investigator's decision on behalf of the Ombudsman