Decision : Upheld
Decision date : 28 Nov 2019
The Ombudsman's final decision:
Summary: The Ombudsmen find fault with the Council and CCG for delays in reviewing and increasing support for the complainant, Mr C. This caused Mr C worry and uncertainty for a prolonged period. He is likely to have missed out on some care and support during this time. There was also an impact on Mr C’s mother. The Council and CCG have agreed to take action to provide a remedy to Mr C and Mrs C.
- The complainant, who I shall call Mr C, complains about a long delay in carrying out a reassessment of his care needs, from when a support plan was begun in September 2015, to a reassessment being done in July 2018. Mr C’s support is jointly funded by the Council and CCG, and he says that the two organisations did not work together to complete the reassessment promptly.
- Mr C also says that the Council had accepted earlier delays in the reassessment process, from 2013 to 2015. However, he says that even though the Council accepted fault for this period, it has not provided an appropriate remedy for this.
- In 2016, Mr C complained to the Council about the delays, and the Council said he would be quickly reassessed. However, this did not happen until 2018. Mr C says that during that time, he was not getting the care and support he needed. He says the changes meant he did not have the overnight care he needed, nor enough support to enable him to continue working and volunteering during the day. He also says that repeated requests for information from both the Council and CCG were onerous and caused him a great deal of stress.
- Mr C also raises concerns that he has not been listened to during the reassessment process, and that this has caused him a great deal of frustration. He said that as a non-verbal communicator, his PAs are his voice. He feels he has not been listened to because he communicates in this way.
- Since the reassessment in July 2018, Mr C says he has received the care he needs although he feels the two organisations are still not working together when requesting information from him. He also feels he has not received an appropriate remedy from the CCG and Council for the period when his care was inadequate.
- As a result of his complaint, Mr C would like an explanation for what happened, and assurance that things will change for other people in similar situations. He also seeks financial remedy if appropriate.
The Ombudsmen’s role and powers
- 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)
- 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)).
- 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.
- 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)
How I considered this complaint
- During my investigation of this complaint, I have considered information provided to us by Mr C. I wrote to the Council and CCG to tell them what I intended to investigate, and request copies of relevant records. I considered the comments and documents they sent. I have also considered the law and guidance relevant to this complaint.
- I sent Mr C, the Council and CCG a copy of a draft version of this decision, and considered their comments on it.
What I found
Applicable legislation and guidance
The Care Act 2014
- 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. They must provide an assessment 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 results they want to achieve. It must also involve the individual and, where suitable, their carer or any other person they might want involved.
- The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
- The eligibility threshold for adults with care and support needs and carers is set out in the Care and Support (Eligibility Criteria) Regulations 2014. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. For a person to have needs which are eligible for support, the following must apply:
- The needs must arise from or be related to a physical or mental impairment or illness.
- As a result of the needs, the adult must be unable to achieve two or more of the following outcomes:
- managing and maintaining nutrition;
- maintaining personal hygiene;
- managing toilet needs;
- being appropriately clothed;
- being able to make use of their home safely;
- maintaining a habitable home environment;
- developing and maintaining family or other personal relationships;
- accessing and engaging in work, training, education or volunteering;
- making use of necessary facilities or services in the local community including public transport and recreational facilities or services; and
- carrying out any caring responsibilities the adult has for a child.
- As a consequence of inability to achieve these outcomes, there is likely to be a significant impact on the adult’s well-being.
- Where councils have determined that a person has any eligible needs, they must meet those needs. When the eligibility determination has been made, councils must provide the person to whom the determination relates (the adult or carer) with a copy of their decision.
- The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what type of care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The care and support plan may include a personal budget, which is the amount of money the council has worked out it will cost to arrange the necessary care and support for the person.
- 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.
National Framework for NHS Continuing Healthcare
- 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 (CHC).
- Although Mr C was assessed as not meeting the threshold for CHC, he was found to have health needs which meant he required a jointly funded package of care (JPOC). This assessment was completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making.
- The CCG’s policy for CHC reviews was to follow the National Framework for CHC, by conducting a review after three months for new patients, and then every 12 months after that. The Framework states that “the frequency, format and attendance at reviews should be proportionate to the situation… should focus primarily on whether the care plan or arrangements remain appropriate to meet the individual’s needs. It is expected that in the majority of cases there will be no need to reassess for eligibility.”
- With regard to working jointly, the Framework says: “If the local authority is responsible for any part of the care, both the CCG and local authority will have a requirement to review needs and the service provided. In such circumstances, it would be beneficial for them to conduct a joint review where practicable.”
Background and timeline
- Mr C lives at home where he is cared for by personal assistants (PAs). He has a brain injury, epilepsy and autism. Mr C is non‑verbal and communicates through his PAs. He requires extensive help with personal care, getting out into the community and accessing his work and voluntary roles.
- Mr C’s care and support is jointly funded by the Council through Direct Payments and by the CCG, who fund the health elements of the care package. Previously, Mr C’s also received funding from the Independent Living Fund (ILF). The ILF was a government fund for disabled people with high support needs to live in the community rather than move into residential care.
- The ILF closed on 30 June 2015, and responsibility for its service users passed to local authorities. Up to this point, the ILF had funded two sleeping nights’ care per week for Mr C, as had the Council.
- All other care outside the support package was provided by Mr C’s mother, Mrs C. When the ILF closed, Mr C required a reassessment of his needs to ensure his support could continue. Mr C requested to increase the care package in place so that he could employ another PA which would mean Mrs C could act as a facilitator rather than provide personal care. Mr C was also concerned about his increasing anxiety, particularly at night, meaning waking nights rather than sleeping nights, were needed.
- Mr C also wanted to ensure he had sufficient support during the day to enable him to continue his volunteer work and getting out into the community. The Council arranged to carry out a reassessment. In the meantime, Mr C was also being assessed by the CCG in relation to the health elements of the care package.
Assessments and support planning
- Assessments of Mr C’s social care needs were done by the Council, while the health assessments were done jointly by a nurse and social worker.
- In July 2015, the Council contacted the CCG to ask them arrange a review of NHS funding and “look at the [funding] split again”. In September 2015, a social worker met with Mr C and his PAs and completed a new support plan following the ILF closure. The support plan sets out Mr C’s needs, what support was provided, and the outcomes Mr C wanted to achieve. It was noted that Mr C had seizures throughout the day and needed to be monitored for these and for the risk of falls. His PAs needed specific training to use the word board to enable Mr C to communicate.
- The support plan also says Mr C requires support with personal care, eating and drinking, support with accessing the community and his work and volunteering, maintaining his home and keeping it safe, and support at night to ensure his safety.
- The support plan documents that Mr C explained he had “a direct payment that is used to employ PAs to support me throughout the day. There is currently not enough money in my budget to employ PAs to support me 7 days a week. My Mum supports me when the PAs are not working.” At this stage, Mr C employed PAs for six hours, six days a week, and a PA for five and a half hours on the remaining day. He also employed a PA to provide a sleeping night for four nights per week.
- The social worker completing the plan noted that Mr C required constant supervision during the day because of seizures and falls linked to his epilepsy. He noted that Mr C would be unable to press a button or trigger an alarm if he were alone. The social worker also documented that Mr C’s anxiety had increased, and this was a particular risk at night. He went on to say: “Due to Mr C’s health conditions he requires 24 hour support to ensure that he is safe and well cared for and all of his health needs are met… Currently the support package in place needs increasing to meet his needs. Without a care package in place Mr C’s health and wellbeing would be significantly impacted upon.”
- The social worker also noted Mr C “has found this assessment process very stressful given the length of time it has taken” and that he found it difficult to concentrate during the discussion.
- In October 2015, Mr C’s healthcare needs were assessed by the CCG. In December 2015, it was agreed that Mr C did not have a primary health need, which he would have needed to qualify for CHC. However, the assessors decided his health needs were sufficient to warrant a package of care jointly funded between the Council and CCG.
- In March 2016, the Council assigned a new care manager to review the support plan. In December 2016, the care manager contacted the CCG about arranging a DST annual review and considering 24 hour care. In January 2017, the care manager noted that although the review was complete, it was “yet to be authorised and we are awaiting a decision with regards a funding split between CHC and the LA”.
- The records show that the care manager then spoke to the CCG, as it had been recorded the CCG did not consider there was enough evidence that PAs were needed each night. It was recorded that “one flexible night per week would be agreed moving forward”. The care manager met with Mr C and Mrs C to explain this, and they said that night care was needed, as Mr C would not be able to summon help if he was alone.
- The care manager met Mr C and told him: “the information I had from CHC was that there wasn't sufficient evidence to confirm night care is required. Mr C and his mother felt strongly about the need for night support. Mr C using his letter board expressed without night care he'd be scared, not safe and worried about choking. I advised although I could see how they felt about the matter, with the evidence the CHC have they don't feel there is the need for a nightly service though we're looking at a step down approach eventually getting to a stage of one night sleep in per week.”
- The Care Manager suggested the PAs complete a diary/care activity grid to show what input was needed overnight, or use an electronic monitoring system called Just Checking. It is documented that Mr C declined to do this initially, as he felt the information had already been provided and PAs did not have time to complete this at night while also carrying out caring duties. However, the PAs did later complete the activity grid although Just Checking was not used.
- In May 2017, a different care manager took over Mr C’s case. The Council said that at this point, it put in additional budgets to meet Mr C’s needs through Service Amendments. These were a temporary increase of a direct one-off payment to cover the care usually provided by Mr C’s mother in addition to PA support. She was unable to provide the care at that time because of a change in her health.
- The first Service Amendment was issued in May 2017. Further service amendments were issued in June 2017, August 2017, October 2017, November 2017, January 2018, March 2018 and July 2018. All of these put extra temporary funding in place for Mr C to provide cover for the care that Mrs C had usually provided.
- Meanwhile, in September 2017, Mr C’s care manager was moved to another role within the Council, and another social worker was assigned to Mr C’s case.
- In March 2018, the Council completed a review questionnaire, again noting that “the support package in place needs increasing to meet his needs”. In May 2018, the CCG did another annual DST review. Documents provided by the CCG note that as of May 2018, the CCG considered there was still “insufficient information to carry out a social and health JPOC split”.
- While he was waiting for the reassessment to be complete, Mr C complained to the Council about delays. The Council apologised for this and said it had mitigated the delay by ensuring the temporary increase in direct payments were enough to cover any unmet needs. The Council apologised for any worry and strain caused by the “pending reassessment” and said the process would be quickly completed. However, as this still had not happened, Mr C brought his complaint to the Ombudsmen.
- Mr C did not formally complain to the CCG. However, in correspondence with him about his reassessment, the CCG also told Mr C it accepted there had been a delay in him receiving the 2018 DST.
- In July 2018, the joint support plan was authorised and Mr C’s funding was increased. This meant Mr C was able to pay for PAs to provide waking night care and additional support during the day. Mr C told us he now has the care he needs.
Delays in reassessment 2015 – 2018
- As noted above, the expectation of a local authority as set out in the Care Act guidance is that care plans should be reviewed every 12 months. However, in Mr C’s case, the available evidence suggests there was a significant delay of almost three years in completing the review. Different case managers within the Council were assigned to Mr C’s case, but the reassessment was not progressed. There appear to be lengthy periods were nothing was happening with Mr C’s case. The wait for assessment was too long, particularly as the Council had already identified, as early as September 2015, that the support in place for Mr C was not sufficient. Even though the Council put temporary budget increases in place to meet Mr C’s needs, the first of these was not until May 2017.
- A lack of joined up working between the Council and CCG also seems to have prolonged the review process, even though the social worker had noted in September 2015 that Mr C was already distressed at the amount of time it was taking for the review to be finalised. Mr C complained that the reassessment process involved “several social workers and CHC assessors visiting to collect the same information over and over again with nothing resolved”. He said the Council and CCG repeatedly asked him to provide evidence about the level of care he needed, even though four different social workers had told him should have increased support. For example, even though detailed reviews had already been carried out, Mr C’s PAs were asked to complete activity grids showing specifically what care had been provided overnight to provide evidence for the CCG of what was required.
- It is understandable that Mr C felt frustrated by these repeated requests, and that he found them intrusive and troublesome. He also told us receiving conflicting information from the Council and CCG was confusing, and caused him anxiety about how much his care might change or reduce. Mr C said he felt his and his PAs’ views on his needs were being ignored.
- The CSSG states that “information sharing should be rapid and seek to minimise bureaucracy... Particular consideration should be given to ensuring that health and care planning processes are aligned, coherent and streamlined to avoid confusing the person with two different systems.” It goes on to say that local authorities should “seek to work with health colleagues to combine health and care plans wherever possible… In combining plans… is it vital to avoid duplicating processes.”
- Similarly, the CHC National Framework also recommends CCGs carry out joint reviews with local authorities where practicable.
- There is evidence that the two organisations made contact with each other about Mr C. The Council also told Mr C it was working closely with the CCG to finalise the reassessment. However this does not appear to have streamlined the process. For example, the Council carried out an assessment in September 2015. This was closely followed by a CCG assessment in October 2015. Similarly, a social worker carried out a review in March 2018, and a CCG assessment was done in May 2018. No reason is given as to why the organisations could not have combined their assessments to reduce the impact on Mr C.
- There is fault here by the Council and CCG. The review processes were not “aligned, coherent and streamlined” as they should have been. This is particularly concerning in view of Mr C’s communication needs, and given that it was documented as early as 2015 that he was finding the reassessment process stressful.
- Mr C told us he experienced frustration and uncertainty during this time with the reassessment hanging over him, as well as anxiety about what would happen to his care package. He also said the lack of funded support in place limited his volunteering and working, and accessing the community. I recognise the Council put temporary budget increases in place from May 2017 to July 2018, but these were unlikely to have given Mr C reassurance that his needs would be met in the longer term.
- Mr C’s care budget was increased once the review was complete, based on the same eligible needs as originally identified and in view of his increasing anxiety over the review period. This enabled him to employ PAs for waking nights and additional support during the day. It seems likely Mr C would have been able access this increased PA support sooner, had the reassessment been completed more quickly.
- There is also an impact on Mrs C in that she had to cover some of the care that should have been provided, as well as the distress and worry caused by the ongoing delay.
- Mr C had to wait until July 2018 for his jointly funded support to be finalised. This was almost three years after the Council had documented that he had eligible needs and the funding received was not sufficient. It appears that while some of this delay was down to changes of staff at the Council; a lack of streamlining assessments and information gathering between the Council and CCG also seem to have been key to the delays.
Delays 2013 – 2015
- In its response to Mr C’s complaint about the earlier period of care, the Council accepted there had been “significant delays in providing a reassessment of [his] health and social care needs”. They said a review was completed in July 2013, but the support plan resulting from this was not finalised until September 2015. It is noted in the support plan that “there has been a delay in getting the Joint Package of Care agreed”.
- A further review was then started after the closure of the ILF (that is, the review period referred to above). The Council said the delays from 2013 to 2015 were down to several social workers and nurses assigned to complete the reassessment but “those reassessments did not conclude”. The Council said they ensured Mr C continued to receive the payments, including what would have been the ILF contribution, as an outcome from the completed support plan of September 2015. However, it is apparent that these earlier delays in reassessment, as accepted by the Council in its response to Mr C, caused him distress and uncertainty. Mr C feels that this has not yet been remedied.
Communication with Mr C and reasonable adjustments
- Mr C said he had been requesting an increase to his support package over this period and felt he and his PAs were not listened to. Both the Council and CCG documented that Mr C is non-verbal and uses a letter board to communicate through his PAs. Mr C has provided documentation showing that when the PAs were not involved, it was not possible for discussion to continue.
- The Council said it and the CCG recognised Mr C used a letter board and a PA facilitator to communicate. The documentation from meetings and assessments supports this view, showing PAs were present during these discussions to use the letter board and facilitate communication. The documents provided also show the DST assessment was split into two so that Mr C would not have to attend one long meeting.
- I have not seen anything to suggest the CCG and Council did not make appropriate reasonable adjustments for Mr C in terms of communication. However, Mr C said that even though the Council and CCG documented that he used an alternative means of communication, the majority of professionals who visited him still did not understand the complexities of communicating through a third party, and what that meant in reality. He says this made him feel as though he was not being listened to. It is difficult to establish this based on the records provided, but I accept that this was how Mr C felt during the assessments. I also recognise that the prolonged period of reassessment, delays to confirming the support plan, and being repeatedly asked for the same information, would all have contributed to Mr C’s feeling that he was not being heard. I also recognise the time and trouble Mr C has been put to in making this complaint, even though he had been reassured the reassessment would be quickly completed.
- While Mr C told us he now has the care he needs, there was a significant impact on him as a result of the delay: anxiety and frustration, and missing out on some care. The Council has accepted the delays and has told us that it is taking steps, in conjunction with the CCG, to improve procedures and timeliness. While this is positive, we note that Mr C said he continues to undergo assessments from each organisation that are not streamlined or carried out jointly.
- Within four weeks of this final decision, the Council and CCG will contact Mr C to acknowledge the fault identified in this case and apologise for the impact on him and Mrs C.
- Within eight weeks of the final decision:
- The Council and CCG will, between them, pay £1000 to Mr C to acknowledge the loss of the care he is likely to have received had the reassessment been completed in a timely way.
- The Council and CCG will, between them, pay £500 financial remedy to acknowledge the injustice to Mr C in terms of the anxiety and distress caused by the delayed reassessment process, including the delays in the earlier period of 2013-15, and the period of reassessment from 2015 - 2018.
- The Council and CCG will, between them, pay £300 financial remedy to acknowledge the injustice to Mrs C, who had to step in to provide some of the care that should have been funded and provided by the Council and CCG.
- The Council and CCG will review their local agreement to improve assessment and care and support planning processes for service users whose care is jointly funded. In particular, they should address the way the two organisations communicate and work together to assess and gather information from service users.
- The Council and CCG will send the Ombudsmen evidence that they have completed these actions, and will provide Mr C with a copy of the action plan.
- I find that the Council and CCG were at fault for delays in assessing Mr C’s needs, and lack of joined up working to reduce the impact of these assessments on him. This led to an injustice to Mr C and Mrs C.
- I consider that the actions the Council and CCG have agreed to take will satisfactorily remedy the injustice I found. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman