City of Bradford Metropolitan District Council (17 016 346)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 04 Mar 2020

The Ombudsman's final decision:

Summary: Ms G has autism, severe anxiety disorder and associated mental health disorders. She complained that Bradford Metropolitan District Council failed to provide her with support for over five years despite agreeing a support plan with her and her consultant psychiatrist from 2014. Ms G claims this impacted on her wellbeing severely. The Ombudsman found the Council failed to provide Ms G with support for at least five years. This severely impacted on Ms G’s wellbeing. The Council agreed to the Ombudsman’s recommendations and will apologise to Ms G, pay her a financial remedy, provide her with support and improve its services for people with autism and communication difficulties.

The complaint

  1. The complainant, who I shall refer to as Ms G, complains that Bradford Metropolitan District Council (the Council) failed to:
    • implement a care and support plan despite having a social care assessment which was completed in June 2014 in line with the joint working agreement between the Council and the local NHS Foundation Trust;
    • provide a suitable independent advocate for Ms G throughout the assessment and support planning process as required under section 2 of the Care Act 2014;
    • provide written information about direct payments and ensure a personal budget was paid to Ms G; and
    • make reasonable adjustments in line with the Equality Act 2010 to ensure
      Ms G had fair access to services and was treated fairly.
  2. Ms G says faults by the Council had severe adverse impact on her physical and mental wellbeing. She also says the Council’s actions amounted to discrimination arising from disability.

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The Ombudsman’s role and powers

  1. The Ombudsman investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsman considers whether it has caused injustice or hardship. Local Government Act 1974, sections 26(1) and 26A(1)).
  2. 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.
  3. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our investigation and issue a decision statement. 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 complainant and her representatives by telephone, in writing and at face to face meetings. The reference to representatives in this context refers to individuals who help Ms G self-advocate. I considered information provided by the Council and the law and guidance relevant to this complaint.
  2. The Ombudsman has agreed several reasonable adjustments with Ms G, including providing her with a single point of contact because of her communication difficulties. Ms G’s complaint is late, but it is reasonable for us to exercise discretion to set aside the complaint as out of time because of the difficulties Ms G faces when communicating and accessing services.
  3. Ms G, her representatives and the Council had an opportunity to respond to a draft of this decision.

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What I found

Legal and administrative context

  1. Before the Care Act 2014, Section 47 of the NHS & Community Care Act 1990 placed a duty on councils to assess the needs of any person in their area who may have needed community care services. Councils had a further duty to decide what services they should provide to meet a person’s needs based on the results of the assessment. Some needs may have been eligible for social care funding, some needs not.  The Council had to provide services for eligible needs but did not have to provide services to meet non-eligible needs.
  2. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. An assessment must be provided to all people regardless of their finances or whether the local authority thinks an individual has 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 also involve the individual and where appropriate their carer or any other person they might want involved.
  3. Paragraph 6.13 of the Care and Support Act 2014 Statutory Guidance states local authorities must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether the local authority thinks the individual has eligible needs and regardless of their financial situation.
  4. Local authorities must ensure that any adult with an appearance of care and support needs, and any carer with an appearance of need for support, receives a proportionate assessment which identifies their level of needs. Where appropriate, an assessment may be carried out over the phone or online. In adopting such approaches, local authorities should consider whether the proposed means of carrying out the assessment poses any challenges or risks for certain groups, particularly when assuring itself that it has fulfilled its duties around safeguarding, independent advocacy, and assessing mental capacity.
  5. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When the eligibility determination has been made, local authorities must provide the person to whom the determination relates (the adult or carer) with a copy of their decision.
  6. The National Institute for Care and Excellence Clinical guideline [CG142] refers to autism spectrum disorder in adults. This says:

“All health and social care professionals providing care and support for adults with autism should have a broad understanding of the:

    • nature, development and course of autism
    • impact on personal, social, educational and occupational functioning
    • impact of and interaction with the social and physical environment
    • impact on and interaction with other coexisting mental and physical disorders and their management
    • potential discrepancy between intellectual functioning as measured by IQ and adaptive functioning as reflected, for example, by difficulties in planning and performing activities of daily living including education or employment.

All health and social care professionals providing care and support for adults with autism should:

    • aim to foster the person's autonomy, promote active participation in decisions about care and support self-management
    • maintain continuity of individual relationships wherever possible
    • ensure that comprehensive information about the nature of, and interventions and services for, their difficulties is available in an appropriate language or format (including various visual, verbal and aural, easy-read, and different colour and font formats)
    • consider whether the person may benefit from access to a trained advocate.”
  1. The National Autistic Society (NAS) is the leading UK charity for autistic people. It provides information and advice as well as training of specialist autism services. It produced a guide for public authorities about involving people with autism. The NAS guide says “people with autism frequently don’t receive the services and support they need and they are usually excluded from the planning and development of services and policies… All information for people with autism should be accessible to them...There is no single preferred method of involvement for people with autism – it will depend on the preferences of each individual… it is vital, therefore that you find out the communication preferences of the person in advance of their involvement.”

Background

  1. Ms G has an Autism Spectrum Disorder (ASD) a life-long development disorder, coexistent psychiatric disorders: severe anxiety disorder, depressive disorder and physical impairments including hypertension and severe chronic pain. Ms G’s severe mental health difficulties were initially managed by her general practitioner.
  2. Ms G’s autism and mental health issues significantly impact on her ability to manage daily living and her ability to move around safely. The main difficulties relate to her impairments associated with social interaction, non-verbal communication, social imagination, sensory processing and executive functioning.
  3. Dr J, a consultant psychiatrist who treated Ms G for several years, said her “mental illness impacts significantly on her autistic spectrum disorder. The anxiety compounds her autistic disabilities tied in with communication issues, sensory processing and executive function. Majority of the time due to difficulties in sensory processing she is not able to take on board information or communicate effectively. She is not able to process things and becomes vulnerable and poses risk to her health and safety.”
  4. Despite Ms G’s conditions she has completed a university education and previously worked in education. During her employment, her mental health issues were exacerbated due to experiencing harassment at work which led to her employers accepting liability. Because of this Ms G had to leave her job and has been unable to work since. Ms G has developed her own understanding of autism which has led to her providing help and advice to some public bodies from the perspective of a person living with autism.
  5. Ms G was first referred to mental health services in 2002 by her general practitioner. She then received formal care and treatment from Bradford District Care NHS Foundation Trust (the Trust). Dr J was her allocated care coordinator from 2010.
  6. Documentary evidence, which includes comments from Dr J, said “[Ms G] has had traumatic experiences in relation to her care and this has had profound negative psychological effect on her mental health. The combination of Asperger’s syndrome and her mental health issues does have a significant impact on her ability to function.”
  7. Dr J wrote a letter to Ms G’s Member of Parliament (MP) in 2013. Dr J said he felt Ms G would benefit from formal social care support to address issues around social isolation as well as practical support in the community.
  8. Dr J said he contacted a Service Manager at the Council to confirm Ms G’s diagnoses and explain why he wanted her to access social care support.
    Dr J felt introducing someone else to the assessment process would cause further delays as Ms G would have to take time to get used to a new person and build a relationship before the assessment could happen.
  9. The Service Manager agreed to Dr J completing an assessment with Ms G on behalf of the Council. Dr J completed the assessment with Ms G by March 2014 and gave this to the Service Manager. The Council then considered the assessment at a panel meeting held in June. The outcome of the panel’s consideration was sent the same month. This said the panel felt a direct payment would be the best way for Ms G to access support. Information from the Council confirms it was not in receipt of a support plan yet.
  10. The Council’s Direct Payments Team emailed the Service Manager to ask for a copy of a direct payments referral form and support plan for Ms G. The email said, “the waiting time for a [direct payment] is only a matter of weeks at the moment.”
  11. The Service Manager responded to the email and said “the service user refuses to talk to anyone except [Dr J]. He (Dr J) has never done [a strengths and difficulties questionnaire] and I am discussing what needs to be in the support plan with him. Once we have this we will need to work out the [indicative] budget and work with him to arrange how it gets paid etc.”
  12. Dr J completed a support plan with Ms G shortly after this email in June. Emails between Dr J and the Service Manager show Dr J felt Ms G needed support with practical things around the house and support to accompany her on trips in the community. The support listed in the plan included assistance in organising daily tasks such as cooking and cleaning due to Ms G’s high levels of anxiety. It also included support to access mainstream services to help reduce her anxiety.
  13. An email from the Council’s ‘Support Options Team’ to the Service Manager confirmed they received a paper copy of Ms G’s support plan. The email said “we have received the paper copy of support plan for [Ms G] – thank you – but it does need to have the number of hours required. This could be on the referral form perhaps. I will attach one for you.” The Service Manager sent the form to Dr J.
  14. Dr J emailed the Service Manager at the end of October 2014 to ask about timescales as Ms G was anxious because she did not know what was happening. The Service Manager replied to Dr J and said “we did consider the support plan at panel and it is completely unrealistic for [Ms G] to ask for this level of equipment and funding… I am sure that [Ms G] can have a reasonable amount of recovery based support if she can work with us to get it but we need to get her budget sorted…”. The Service Manager also said the Council would need a financial assessment.
  15. Dr J replied to the Service Manager and said he agreed it was not practical for anyone else to become involved in the support planning process due to the amount of time it took. Dr J also said the support plan was more of a wish list which was complicated by other issues such as Ms G’s past treatments and discrimination.
  16. The Council’s own complaint investigation confirmed a meeting then took place between Dr J, Ms G and the Service Manager in November. The Council does not have a written record of this meeting.
  17. A copy email from Dr J to the Service Manager sent in December included a letter from Ms G setting out why the information noted in the support plan amounted to social care needs rather than solely being her wishes. The Service Manager acknowledged receipt of the letter.
  18. Dr J contacted the Service Manager in February 2015 and said Ms G wanted to meet to get things sorted. A meeting did not take place until mid-May between representatives from the Council, Ms G and Dr J. The Council does not have a written record of this meeting. Its complaint investigation referred to the support plan which had handwritten notes added to it during the meeting. The Council and Ms G provided a copy of this to the Ombudsman.
  19. Dr J emailed the Service Manager in June to confirm he had met with Ms G at an outpatient appointment. Dr J said, “the delay in the assessment of needs process is having a significant impact on her mental health and ability to cope on a daily basis. Until the matter is resolved we request an interim payment to look at respite as I feel this will be helpful to manage her distress.”
  20. The Service Manager replied and said the delay was because the people resolving the support planning were senior managers who had other priorities. In summary, the email said Ms G was eligible for support, she would need a specialist support worker who was an expert in autism and the Council agreed to provide respite through a family carer or Shared Lives.
  21. Dr J asked the Service Manager to confirm in a letter what services would be provided to Ms G. Despite Dr J chasing for the letter the Service Manager did not send one. He told Dr J he was happy to implement what he said in his email and he was drafting a letter to the MP in response to concerns raised by Ms G.
  22. Dr J said he could not share the email with Ms G as confirmation of a formal offer of support from the Council. Dr J confirmed his understanding of what was agreed. He understood that support would be provided via direct payments which would allow Ms G to have choice and control over her support. He also said respite through a family carer or Shared Lives would not work for Ms G because of her diagnosis of Asperger’s and the difficulty she experienced with new people and new environments.
  23. The Service Manager responded to a letter from the MP in July. In summary, the Service Manager accepted the Council had delayed in providing formal support to Ms G but said this was partly due to the restrictions Ms G had placed upon the process. The letter said:
    • Dr J had completed an assessment and a ‘suggested support plan’ with assistance from the Council and this was presented to its resource allocation panel;
    • the panel unanimously rejected the assessment and support plan based on three points listed in the letter;
    • the panel asked for a reassessment and there was a recommendation an assessor should be allocated as it was difficult for Dr J in his position as consultant psychiatrist;
    • following two meetings the Council agreed to a different approach. It was willing to set up a support plan and the first stage would be using an individual budget to identify a support worker who would build a trusting relationship with Ms G, assist with communication and develop further support.
  24. An email from the Service Manager to Dr J confirmed a copy of the letter would be sent to him. The Service Manager also said the Council was happy to set up direct payments to provide a specialist support worker.
  25. Dr J contacted the Service Manager to say events were having an adverse impact on Ms G’s mental health. In the following weeks, the Service Manager asked the relevant team within the Council to set up a contract for a specialist mentor or alternatively direct payments.
  26. Dr J wrote to Ms G’s MP in September to provide an overview of his involvement in the social care assessment and support planning process. Dr J said the Service Manager’s letter to the MP which referred to Ms G being “hard to communicate with and had a difficult personality” did not provide an accurate reflection of her personality. Dr J said:
    • the delay in the process was because of the busy schedule of the Service Manager;
    • the support plan was not rejected by the Council at the earlier meeting held in May 2015 and the support plan was the framework used to discuss support;
    • his understanding from the meeting was that the support aspect of the support plan would be funded initially with the view to ensuring the support was in place;
    • a council officer at the meeting felt other aspects of the support plan should be reconsidered once the support aspect of the plan was in place;
    • because of delay in the process the Service Manager had agreed to back date the support plan to the date when the panel met in June 2014; and
    • it was agreed Ms G would receive direct payments to enable her to fund some of the support set out in the support plan as this approach would best meet her identified needs.
  27. In January 2016, a Head of Service from the Trust wrote to the Council and confirmed he had chaired the meeting held in May 2015. He said the agreement was that funding would be through direct payments, but this had not happened yet. He asked for help in expediting a resolution.
  28. The Service Manager sent a letter to Dr J in the same month about Ms G’s case. The letter said it had not been possible to set up direct payments for Ms G because the support plan did not meet the Council’s criteria for direct payments. The letter went on to say the resource allocation panel agreed in principle to support direct payments if they could be changed to meet the ‘value for money requirement.’ The Service Manager had agreed to decide the eligibility criteria had been met without further need for an assessment and he would sign off a direct payment to pay for a support worker/personal assistant. The Service Manager wanted to allocate a social worker to help identify the support to be provided and agree the number of hours needed.
  29. Following further communications, the Council started a complaint investigation about the delay in providing support and related matters after it received a complaint letter from Ms G.
  30. The Council wrote to Ms G in November 2016 before its complaint investigation was complete. The letter from an Assistant Director said she had met with the officer investigating the complaint and was aware of some of the findings so far. The Assistant Director apologised that support was not provided to Ms G after she had met with the Service Manager in 2015. The letter went on to set out what elements of the support plan the Council agreed to fund. These were as follows:
    • to find help to organise daily life - 20 hours weekly paid at £15.00 per hour totalling £300 weekly;
    • organising things at home and opening letters - 12 hours weekly paid at £15.00 per hour totalling £180 weekly;
    • support to access mainstream services - 2 hours weekly paid at £12.50 per hour totalling £25 weekly;
    • professional Mentor - 1 day per week paid at £750 per session (10 sessions);
    • respite – 2 days every 3 months to a total of 8 days annually paid at £100 per day totally £800 per year; and
    • activity break once a year paid at £400.
  31. The Council said the funding for the activity break and the professional mentor sessions would be included as a lump sum of £7,900. The remainder of the support plan would be paid weekly subject to a financial assessment. The Council said the funds would be available subject to a direct payments agreement outlining management of funds. The letter also said further clarification of the professional mentor was required subject to further review. However, it wanted
    Ms G to be able to access support immediately without further delay. It also said it recognised there was a need to address the distress caused by the delay and the absence of support.

Other elements of the support plan not referred to in the Council’s letter

  1. The support plan listed other areas of support which were not included in the Council’s letter. These were as follows:
    • Opportunities for higher studies to help reduce social isolation - £2,500 yearly
    • Access to electronic equipment such as a synth-kit, digital camera, iPad to help reduce social isolation and enable Ms G to take part in events - £3,400 yearly
    • Guitar/drum lessons to help Ms G cope with her anxiety - £50 weekly for six months
    • Access to regular physical health activity to help reduce social isolation and improve mental wellbeing. Gym Membership - £60 monthly
  2. The copy of the support plan has “not at this point” written against all these elements of the support plan. Ms G says the Council agreed to look at other sources of funding for these elements when it met with her in May 2015. She said it deferred these elements rather than refused them.
  3. In January 2017 Ms G wrote to the Chief Executive of the Council to set out her view that the Council had failed to provide her with support. Ms G referred to the letter sent by the Assistant Director and said she had asked the Council for an emergency payment so she could pay someone to help her to prepare and organise for the financial assessment. Ms G said she did not receive a response. Ms G said this obstructed her access to social care, caused her real distress which intensified her impairment. As a result, she said she had experienced loss of functioning in other areas of her life while she recovered from the ongoing psychological and physiological impact of the stress on her autism and mental health illness.
  4. The Council said it wrote to Ms G in June 2017 offering her and Dr J a meeting to discuss the outcome of its complaint investigation. The Council’s investigation outcome included some of the following findings:
    • there was maladministration when the Council assessed Ms G’s need for care and support;
    • the care and support plan was not implemented and there was delay in progressing the matter but it was unclear who was at fault;
    • comments made by the Council in letters were insensitive to her disability and her legitimate need for clear and consistent communication; and
    • there was no evidence to show Ms G had asked the Council to complete an assessment earlier.
  5. The Council’s investigating officer made several recommendations including that the Council should apologise to Ms G, start the care and support process again, identify a suitable person to undertake the assessment on behalf of the Council, and consider any retrospective entitlement which in effect would be compensation.
  6. The Council did not send Ms G or her representative a copy of the complaint investigation outcome but said it had planned to discuss the outcome of the complaint investigation at a meeting also arranged for June 2017. It said it did not receive a response to its offer. There is no evidence to show it took further action.
  7. The Council did not provide Ms G with any further updates on the support it decided she needed to meet her needs. I have not seen evidence to show it kept the situation under review.

Findings

Failure to implement a care and support plan from 2014

  1. The Council had a statutory duty to formally assess Ms G’s needs and then determine whether she needed formal support. Because of Ms G’s autism, her associated mental health disorders, her communication difficulties and help needed to navigate the care and support planning process the Council agreed that Dr J was the most appropriate person to complete the assessment. It is likely any other arrangement would have led to further delays.
  2. There was no suggestion this arrangement fell outside of the Council’s statutory responsibilities when the process was agreed between it and Dr J. As such it accepted the assessment from Dr J completed in June 2014 as completed on its behalf. The Care Act 2014 was not in force until April 2015, but the Council was aware of the pending legislation.
  3. The Council accepted the assessment and following further discussion with Dr J it reviewed the support plan he completed with Ms G. This support plan was discussed by the Council’s resource allocation panel who agreed Ms G had needs eligible for formal support.
  4. There was dispute and further discussion about which parts of the support plan the Council would fund and this was made clear to Ms G and Dr J. However, documentary evidence shows the Council agreed to some of the support listed in the support plan. This was set out in the letter written by the Assistant Director and noted on the support plan with the handwritten notes.
  5. The Council said the support on offer was subject to financial assessment and said Ms G refused to cooperate with the process. In response to the Ombudsman’s enquiries the Council said the Service Manager withdrew the support on offer because he received no agreement for an assessment to take place, no agreement for a financial assessment and no agreement for audit or payment arrangements. I have not seen documentary evidence to show how the Council made this decision. There is no evidence to show this decision was communicated in writing or verbally to Ms G or Dr J at the time. What the Council says contradicts the evidence available.
  6. In any case the information from the Council suggests this decision was made before the Council wrote to Ms G apologising for the delay in providing support and agreeing to provide some support.
  7. Based on the evidence available, I find the Council accepted as valid both the assessment from Dr J and some of the subsequent support plan. The Council has not provided Ms G with any support since it assessed her needs in June 2014. This is fault.

Other elements of the support plan

  1. As noted, the support plan included other elements not listed in the Council’s letter. The support plan has the words “not at this point” written against some parts of the plan. Ms G says the Council deferred a decision on these parts of the support plan pending the outcome of sourcing alternative funding. There are no minutes of the meeting to record what the Council decided at the time. However, when Dr J wrote to Ms G’s MP, he said his understanding from the meeting was that the support aspect of the support plan would be funded initially with the view to ensuring the support was in place. He also said a council officer at the meeting felt other aspects of the support plan should be reconsidered once the support aspect of the plan was in place. Therefore, is it likely on balance the Council deferred the decision.
  2. There is no evidence to show the Council reconsidered these aspects of the support plan or provided a decision to Ms G. This is fault which leads to uncertainty. The Ombudsman cannot decide what level of support is appropriate or adequate for any individual. This is a decision the Council must make in line with the law and good practice. It is reasonable for the Council to now provide a decision regarding the other areas of support.
  3. Information from Ms G’s clinicians confirm she:
    • has communication problems associated with her autism. Because of this she will spend many hours daily trying to sort out problems with multiple agencies that do not understand the way she communicates;
    • struggles to travel safely without assistance. Events such as traffic, crowds and loud noises all trigger sensory overload making it difficult for her to return home from places safely;
    • experiences increased anxiety if she does not get the support she needs. This results in situations where she may walk into traffic;
    • experiences overwhelming exhaustion accompanied by symptoms of acute anxiety which takes several days to subside. When this happens, she struggles to leave her home for periods of up to several days;
    • struggles with budgeting decisions, managing utilities, planning meals and meal preparation as she burns herself, cuts her hands, leaves food to burn and fails to cook food properly;
    • has visuospatial problems due to her autism disorder. This leads to falls inside and outside of the home; and
    • needs prompts to take her medication.
  4. Ms G says she always wanted to return to work but because of the impact of the faults on her wellbeing, Dr J suspected she has regressed to the point she could no longer achieve this outcome. The support agreed by the Council in the letter it sent in 2016 included 34 hours of weekly support hours to meet Ms G’s needs. The letter from the Council confirmed Ms G needed at least:
    • 20 hours of weekly support weekly to help organise her life daily because of her high level of anxiety which meant she struggled to complete tasks such as cleaning and organising and preparing meals. The support plan noted Ms G would go without food, without assistance, or have accidents without support;
    • 12 hours of weekly support to manage her affairs and assistance opening and reading letters as due to her severe anxiety disorder she had difficulty dealing with agencies. The support plan noted Ms G could stop opening or responding to letters and remained at risk of getting into financial difficulty; and
    • 2 hours of weekly support to access mainstream services such as her general practitioner, libraries and other organisations. The support plan noted organisations and people could perceive Ms G’s communication as aggressive due to her communication difficulties and severe anxiety disorder. Ms G felt this could lead to discrimination.
  5. In addition, the Council said Ms G needed respite. On balance, it is likely the support would have helped Ms G alleviate some of the problems listed by Dr J and may have enabled her to achieve her outcomes. There has also been failure by the Council to review Ms G’s needs annually in line with the Care Act 2014. This means Ms G’s injustice is continuing.

Failure to provide written information about direct payments, pay a personal budget and provide Ms G with a suitable advocate

  1. There is no evidence to show the Council provided Ms G, Dr J or any other representative associated with Ms G, written information about direct payments or personal budgets. This is fault.
  2. The care and support statutory guidance says, “information and advice is fundamental to enabling people, carers and families to take control of, and make well-informed choices about, their care and support and how they fund it. Not only does information and advice help to promote people’s wellbeing by increasing their ability to exercise choice and control, it is also a vital component of preventing or delaying people’s need for care and support”.
  3. The Council refers to Ms G not engaging with a process when it was already aware that her diagnoses and conditions meant it was difficult for her to navigate processes. This information was provided to the Council by Dr J during the time he communicated with it. Ms G had never accessed the care and support process previously. Dr J was not an experienced social care practitioner although it was agreed he was the most suitable person to complete the assessment with Ms G. The Council should have provided more support to Dr J and ensured he had the tools and information to navigate the process.
  4. Ms G has substantial difficulty navigating processes and at times retaining or using information. Therefore, the Council should have considered whether she needed independent advocacy. While the Council did consider independent advocacy during its investigation of Ms G’s complaint there is no evidence to show it did so during the care and support planning process.
  5. Had the Council provided Ms G and Dr J with written information it is likely this would have helped Ms G and Dr J better understand the care and support planning process. The Council’s failure to provide written information as it should have contributed to delays in the care and support planning process.
  6. The Council has never paid a personal budget and I have found fault with this decision. The Council says Ms G did not complete a financial assessment as required. However, Ms G says she asked for a payment from the Council so she could pay someone to help her with the financial assessment. I have not seen evidence to show the Council responded to Ms G’s request. Therefore, I do not find that Ms G was reluctant to complete a financial assessment.

Failure to make reasonable adjustments

  1. When providing services public authorities must take steps to remove the barriers people face because of their disability. The Equality Act 2010 calls this the duty to make reasonable adjustments. Reasonable adjustments should be made if a person is disadvantaged by something because of their disability and it is reasonable to make changes to remove the disadvantage. It aims to ensure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
  2. When the duty arises, a public body is under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable the body must make them. The duty is ‘anticipatory’. This means a body cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, mobility impairment or a learning disability.
  3. I have not seen documentary evidence to show the Council agreed any formal reasonable adjustments with Ms G during the time it assessed her need for care and support. However, it said it was mindful of her disability and what she wanted as reasonable adjustments. The Council may have been aware of the reasonable adjustments, but I have not seen evidence to show how it put the reasonable adjustments in place. There is evidence that it communicated with Ms G via email as requested. But it did not also send email communication to her representatives which was a requested reasonable adjustment.
  4. The Council should have anticipated its duty stemming from the information provided to it by Dr J about Ms G’s communication difficulties.
  5. Ms G’s says the Council’s actions amounted to discrimination. The Ombudsman cannot say whether the Council discriminated against Ms G, as this decision is best considered by the Court. There is evidence to show a lack of consideration by the Council to either consider or implement reasonable adjustments during its dealing with Ms G. As a result, it is likely she was prevented from using its services as close as it was reasonably possible to get to the standard offered to a non-disabled person.
  6. The evidence available suggests the Council did not understand or fully accept Ms G’s communication difficulties. Ms G became aware of what the Council had written about her after she made a subject access request. The Council had referred to her as being difficult, not engaging with the process and uncooperative. Some information referred to Ms G ‘saying’ she had a disorder or ‘she feels she has’ a disorder despite Dr J confirming Ms G’s diagnoses and associated disorders. The Council should have accepted this. It did not and it is at fault.
  7. Ms G was offended and experienced distress when she became aware of the language written about her by the Council. Dr J also felt the Council did not understand Ms G’s communication problems which is why he wrote a letter of support to her MP. Ms G says the Council’s comments caused her distress and it is likely, on balance, this was the case. Ms G’s distress would have been further exacerbated by her severe anxiety disorder.

Conclusion

  1. The Council agreed Ms G’s appearance of need for care and support should be assessed, under its supervision, by Dr J, a consultant psychiatrist, working for the Trust. The Council also asked Dr J to complete a support plan with Ms G.
  2. The Council decided Ms G had eligible needs and that her needs would be best met by providing a personal budget via direct payments. The Council failed to provide Ms G and/or her representative with written information about the care and support planning process, personal budgets and direct payments. It has not paid Ms G a personal budget or attempted to progress the support planning process despite deciding Ms G has eligible needs. Ms G has been without the formal support the Council should have provided to her for over five years.
  3. The evidence available leads to a finding, on balance, that because of the lack of formal support Ms G has experienced significant difficulty and avoidable distress during the last five years when:
    • accessing mainstream support such as when visiting her general practitioner;
    • completing tasks around the home and meal preparation;
    • communicating with and responding to correspondence from other agencies such as utility companies and financial institutions;
    • accessing leisure facilities outside the home;
    • participating in social activities to meet her needs; and
    • being able to travel around safely.
  4. The Council has not provided evidence to show it made reasonable adjustments in line with equalities legislation. It has not shown how it considered Ms G’s need for independent advocacy during the care and support planning process. It is likely the faults severely impacted on Ms G’s wellbeing and caused her substantial injustice.
  5. The Council did not try to complete the support planning process following the completion and findings of its investigation into Ms G’s complaint. The Council was aware of the injustice it had already caused to Ms G but has since not acted to put things right. This is fault and because of this Ms G continues to experience injustice.
  6. It is likely that any person assigned to complete care and support planning with Ms G should be given time to get to know her so they can understand her communication difficulties and how her disability affects her ability to process and retain information. Any assessor should also have specialist training in autism and the Council should agree any reasonable adjustments in line with the law following discussion with Ms G.

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Agreed Recommendations

  1. In coming to a view on a suitable remedy I have considered the LGSCO’s published guidance on remedies. I have also considered my experience of investigating this complaint in line with the reasonable adjustments agreed because of the significant difficulties Ms G experiences as a result of her disability.
  2. Ms G has been without the formal support agreed by the Council for over five years. It is difficult to quantify the adverse impact the lack of formal support has had on her wellbeing and independence. However, it is apparent from the evidence available and from the contact with Ms G that she has substantial difficulty navigating processes, managing her daily living skills, communicating with agencies, accessing public and utility services and travelling around safely. It is likely this has been made worse because of a lack of formal support. Fault by the Council is likely to have caused Ms G significant injustice because of the severity of adverse impact on her wellbeing.
  3. The Ombudsman recommends that within four weeks of the final decision the Council:
    • writes to Ms G, via her chosen representative if necessary, to apologise for the adverse impact the failure to provide her with support for over five years has had on her wellbeing and independence. The apology should come from an officer of appropriate senior level given the fault and level of injustice identified by the Ombudsman. It should also acknowledge the injustice caused to Ms G by the Council’s failure to provide her with written information and make reasonable adjustments;
    • pays Ms G £60,000 to acknowledge the substantial adverse impact on her wellbeing caused by the failure to provide her with the support the Council assessed she needed and the associated distress and severe anxiety she experienced. The impact includes (but is not limited to) the adverse and severe impact on her ability to get the support she needed with daily living skills such as meal preparation and planning, dealing with day to day matters with other organisations, accessing health services with suitable support, avoiding social isolation and travelling safely to and from her home. This is likely to have exacerbated her severe anxiety and depressive disorders. The remedy is calculated based on the substantial difficulty Ms G has had since being assessed and left without formal support for over five years. This equates to £1,000 monthly x 60 months; and
    • discusses with Ms G and her representative whether the payment will impact on her entitlement to benefits/finances and if necessary, pay an independent professional person to provide her with financial advice.
  4. The Council’s complaint investigation and the Ombudsman’s investigation acknowledges the need for Ms G to have a care package in place as soon as is practicably possible. The last assessment and support plan completed is what the Council should act on until it is able to identify a suitable person to reassess
    Ms G’s needs. The Ombudsman recommends that within two months of the final decision the Council provides an action plan to the Ombudsman and:
    • ensures Ms G has access to independent advocacy to help her navigate the care and support planning process. The Council should agree the suitability of independent advocacy with Ms G;
    • determines how it will implement Ms G’s care package based on the last assessment and support plan completed and subject to its procedures relating to personal budgets, direct payments and financial assessment;
    • confirms to Ms G its decision on the other parts of the support plan which it deferred to “not at this point”. It should provide clear reasons to show how it reached its decision and provide this to the Ombudsman. If the Council decides Ms G should have received any of these services earlier, it should consider the injustice and provide a remedy and share this with the Ombudsman;
    • liaises with Ms G and her chosen representative to appoint a suitable person who can review/reassess her needs in line with the Care Act 2014 on behalf of the Council. The review should not delay the Council implementing a care package for Ms G now. It should provide for a period of stability with the current care package before review because of Ms G’s severe anxiety disorder and difficulties associated with her autism;
    • ensures Ms G and her representative are provided with documentation such as care plan, support plan and written information relating to personal budgets and direct payments with clear explanations to show how the Council reaches its decisions and applies its care and support planning policies and procedures to Ms G’s case;
    • considers and implements any reasonable adjustments necessary to ensure Ms G can use its services as close as it is reasonably possible to get to the standard usually offered to non-disabled people;
    • reviews the findings of this investigation and consider whether training is needed for officers responsible for care and support planning around autism and the duty to make reasonable adjustments; and
    • consider whether its policies and procedures relating to people who use services who are autistic and have associated mental health disorders is in line with best practice.

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Final decision

  1. The Council has agreed to the Ombudsman’s recommendations to remedy the complaint. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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