Decision : Upheld
Decision date : 19 Jun 2019
The Ombudsman's final decision:
Summary: The Council is at fault as it delayed in carrying out a care needs assessment for Ms X, did not properly consider the significance of Ms X’s pending assessment for Autism Spectrum Disorder when assessing her care needs, did not review if it needed to reassess Ms X’s care needs, did not clearly communicate with Ms X about her care plan, did not retain Ms X’s advocate to assist her in challenging the personal budget and delayed in dealing with her complaint. The Council has agreed to remedy Ms X’s injustice by apologising, making a payment and reassessing her care needs.
- Ms X complains that the Council did not apply the Care Act 2014 and breached the Equality Act 2010 when assessing her care and support needs. In particular she complains:
- The Council refused to carry out care and support needs assessment and then delayed in carrying out that assessment.
- The social worker assessing her needs and drawing up her care and support plan did not understand or consider the effect of Ms X’s autism spectrum disorder and mental health on her needs;
- The Council failed to involve her in drawing up a care and support plan so the plan does not meet her needs;
- The social worker wrongly contacted Ms X not her advocate which caused distress to Ms X;
- The Council wrongly asked Ms X to sign up for direct payments when it had not completed care and support planning or carried out a financial assessment
The Ombudsman’s role and powers
- 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)
- 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 complaint and the information provided by Ms X;
- Discussed the issues with Ms X;
- Made enquiries of the Council and considered the information provided;
- Interviewed officer B to obtain more information;
- Invited Ms X and the Council to comment on the draft decision.
What I found
- 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.
- Where local authorities have determined that a person has any eligible needs, they must meet these needs. In order to decide how care a person’s eligible needs should be met, the Council must 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 care and support may be available in the local area. When preparing a care and support plan the local authority must involve the adult.
- Paragraph 6.90 of the Care and Support Statutory Guidance (the guidance) states that the Care Act places a legal requirement on local authorities that all assessors must have the skills, knowledge and competence to carry out the assessment in question. Where an assessor does not have experience in a particular condition, such as autism, they must consult someone with relevant experience. This is so the person being assessed is involved throughout the process and their needs, outcomes, and the impact of needs on their wellbeing are appropriately identified.
- The guidance provides the Council must arrange an independent advocate to facilitate the involvement of the person in their assessment, in the preparation of their care and support plan and in the review of their care if that person will have substantial difficulty in being fully involved in these processes and if there is no other appropriate individual available to support the person. The guidance sets out the role of the advocate and this includes assisting a person to challenge a process or decision by the Council where they are unable to challenge it without assistance.
- Section 17 of the Care Act 2014 provides that the Council should assess a person’s resources and any amount a person would be likely to have to contribute to their care once it has decided they have eligible needs. Paragraph 11.3 of the Care and Support statutory guidance provides the personal budget is the mechanism that, in conjunction with the care and support plan, enables the person, to exercise greater choice and take control over how their care and support needs are met. It means knowing before care and support planning begins, an estimate of how much money will be available to meet a person’s assessed needs, and with the final budget, having clear information about the total amount of budget, including the total amount the local authority will pay, and what amount if any the person will pay. The person should also be able to choose from a range of options for how the money is managed including direct payments.
- Ms X has a number of heath conditions, mental health conditions and Autism Spectrum Disorder (ASD). In July 2017 she wrote to the Council to request an assessment of her care and support needs.
Assessment and personal budget
- The Council carried out a screening assessment. The screening assessment recommended Ms X be referred for a care needs assessment and that she might benefit from enablement. Ms X says the Council told her at this time she was not eligible a care act assessment. The Council’s records do not show it contacted Ms X at this time.
- Ms X contacted her GP. She says this was because the Council had caused distress to by refusing to carry out a care needs assessment. The GP requested the Council carry out a face to face assessment with Ms X. The GP stated she had referred her for an assessment for suspected ASD, she had a number of medical conditions and anxiety and depression.
- The Council procedures provide that people not previously known to adult social care and who require an assessment are referred to the Council’s enablement team to be assessed over a period of up to six weeks. This is not a care needs assessment. The Council referred Ms X to the enablement team.
- In August 2017 officer A, an enablement officer, arranged to assess Ms X. She cancelled her appointment as she was unwell and because she required an advocate. The Council arranged an advocate for Ms X. Officer A decided he should refer Ms X for a care needs assessment. This was because he considered Ms X’s case was complex and not suitable for enablement. The Council has acknowledged it failed to make the referral.
- Ms X made a complaint to the Council in November 2017 that it had failed to carry out a care needs assessment for her. Officer B, a social worker, contacted Ms X on 22 January 2018 to arrange to carry out her assessment on 7 February 2018. Officer B also contacted Ms X’s advocate to arrange for her to be present at the assessment.
- Officer B carried out the assessment on 19 February 2018 with Ms X and her advocate. When interviewed officer B said she explained the assessment and support planning process to Ms X and her advocate. Officer B said she also explained the role of the domiciliary care panel which is to authorise what care package can be offered to meet a person’s needs. Officer B also gave Ms X a leaflet about direct payments. She said Ms X was happy to use direct payments.
- Officer B’s assessment notes Ms X had a series of medical problems which limited her ability to undertake day to day tasks. She also notes Ms X was being investigated for ASD and that Ms X considered her autism was at the root of her problems and caused her to be socially isolated. However, there is no evidence to show whether officer B considered she needed specialist input to understand the effect of Ms X’s ASD on her needs, outcomes and wellbeing or if she needed to review the assessment once Ms X had a diagnosis.
- Officer B assessed Ms X as having eligible needs as she could not meet her outcomes in managing and maintaining nutrition, managing personal hygiene, maintaining a habitable home environment, being able to use her home safely and being able to make use of services in the community.
- Officer B recommended to the domiciliary care panel that Ms X could meet her outcomes with a personal budget for 12.25 support per week plus 2 hours per week for domestic and shopping support. She considered this could be used by providing three calls a day to Ms X plus domestic and shopping support. When interviewed officer B said although Ms X had not been through the care and support planning process she had to give the domiciliary care panel an idea of how the direct payments could be used.
- The panel considered Ms X had eligible needs but required more information from Ms X and her GP regarding her medication, diet and benefits and to explore whether a lunchtime call could be delivered in other ways. Officer B contacted Ms X to obtain the further information the panel required. The panel chair then agreed a personal budget of 12.25 hours of care per week and one hour per fortnight for domestic help. The panel chair did not agree to provide help with shopping.
- Officer B contacted Ms X to notify her of the panel’s decision. Ms X asked her to contact her advocate as she was finding the information overwhelming. Officer B’s record of the call notes she told Ms X it was her care plan and assessment so she needed to speak to her. The record also notes officer B told Ms X that she would complete the care plan and send it to the direct payments team for payments to be set up.
- Ms X has said she was caused distress by officer B contacting her as she did not understand what the panel or care plan was. Officer B said she contacted Ms X rather than her advocate to obtain the information required by the panel and to update as Ms X had not asked her to only contact her advocate.
- Officer B then sent an email to Ms X. In the email officer B said:
“Following representation of your case to the panel chair on 16 March the following care plan was agreed for you:
Direct payments PA support 12.25 hrs weekly + additional 1 hour domestic care once a fortnight
AM call – 45 mins
Lunch call – 30 mins
Tea call – 30 mins”
- Officer B also said she had passed the care plan to the direct payments team who would arrange to visit Ms X to progress the care planning. Officer B said she would send a copy of Ms X’s assessment and care plan when it had been commissioned.
- Ms X’s advocate sent an email noting a conversation she had with Ms X to the Council. The email explains Ms X told her advocate the reasons why she disagreed with the level of direct payments. The panel chair agreed one hour per fortnight for shopping.
- The Council’s records show officer B notified Ms X’s advocate that the panel chair agreed a personal budget of 12.25 hours per week plus 2 hours once a fortnight. Ms X’s case was then passed to the direct payments team to discuss Ms X’s care and support plan with her to determine how best her personal budget could meet her needs. The records show Ms X’s advocate sent an email to the direct payments team notifying them that Ms X had turned down the care package and had decided to challenge it. The Council closed Ms X’s case. Ms X has provided evidence to show the Council sent a copy of her assessment and proposed care plan to her.
- Ms X’s advocate stopped assisting her. Ms X has said the Council should have retained her advocate to help her challenge the assessment.
- Ms X was diagnosed with ASD in April 2018. The Council’s records show the NHS Trust notified the Council of Ms X’s diagnosis in May 2018. It requested the Council review Ms X’s assessment in light of her diagnosis and additional needs associated with it. Officer B replied to the email but there is no evidence to show she considered if Ms X’s needs should be reviewed following her diagnosis.
- Ms X made a complaint on 30 November 2017. She resubmitted the complaint on 5 December as she did not receive an acknowledgment. The Council replied on 5 February 2018 and acknowledge it delayed in referring Ms X for a care needs assessment. It said this was caused by the social work team requiring a more detailed handover from the enablement team but this was not provided. The Council apologised to Ms X for the delay.
- In March 2018 Ms X made a complaint about the Council about officer B contacting her rather than her advocate. The Council did not respond to this complaint. So, Ms X made a further complaint in April 2018. The Council responded on 25 May 2018 by email. The Council acknowledged it had overlooked Ms X’s complaint of March 2018. It did not uphold her complaint about the level of personal budget it would provide.
- Ms X did not receive the Council’s letter of 25 May 2018. The Council has provided evidence to show it sent the response from its complaints management system on 25 May 2018 to Ms X.
- In response to my enquiries the Council clarified that it did not undertake care and support planning with Ms X as she had rejected the personal budget. The Council also said it carries out financial assessments once their care and support has been planned. So it did not carry out a financial assessment for her.
- In making her complaint to the Ombudsman, Ms X has said that she had to wait too long for an assessment as the Council refused to assess her. Ms X considers the assessment did not take into account the effect of her ASD on her needs and the Council wrongly drew up a care and support plan and personal budget without involving her. Ms X considers officer B caused her distress by contacting her direct as she did not understand what panel or the process was. She also considers the Council was wrong to ask her to sign for direct payments when it had not financially assessed her.
- Ms X accepted the personal budget following a stay in hospital as she needed care but she strongly considers it to be insufficient to meet her needs.
Delay in carrying out a care needs assessment for Ms X and personal budget
- The Council’s procedures are to refer all new referrals to enablement. But the Council is at risk of not acting in accordance with the Care Act 2014, and potentially fettering its discretion, if it refers people who have the appearance of care and support needs to enablement instead of carrying out a care needs assessment. It also gives the appearance of gatekeeping. Ms X had requested a care needs assessment and the screening assessment recommended a care needs assessment. So the Council should have referred Ms X for a care needs assessment rather than to enablement.
- In response to my draft decision the Council has said it is confident officers do not refer a person to enablement rather than carry out a care needs assessment where that person has an appearance of care and support needs. However, it will undertake an audit to ensure this is not the case.
- The Council has acknowledged it then delayed in carrying out a care needs assessment for Ms X as it failed to properly complete the referral from the enablement team. This is fault.
- At the time of her assessment Ms X had not been diagnosed with ASD. But officer B was aware of Ms X’s impending ASD assessment. There is no evidence to show officer B addressed herself to the fact Ms X was due to be assessed for ASD. Officer B should have considered if she could proceed with the assessment before Ms X had been assessed for ASD, if she needed specialist input at this stage or if Ms X’s care needs should be reviewed following the outcome of the ASD assessment. The Council’s failure to do so is fault.
- In response to my enquiries the Council has said it does not have evidence of an ASD diagnosis for Ms X. This is not the case. The Council’s records show the NHS Trust informed the Council of Ms X’s diagnosis and asked it to review Ms X’s needs in light of the diagnosis. Officer B declined to review Ms X’s needs. But there is no evidence to show what consideration she gave to whether she had a full picture of how Ms X’s diagnosis could affect her needs, outcomes and wellbeing. The Council has not demonstrated officer B has experience of ASD. So she should have sought input from another experienced practitioner as to whether Ms X’s care needs should be reviewed in light of her diagnosis. As a result there is no evidence to show the Council has properly taken account of Ms X’s diagnosis of ASD and assessed her care needs in accordance with Care and Support Statutory Guidance. This is fault.
- The Council has said it will look at the training it offers to staff regarding ASD as part of its review of the National Autism Strategy. It would also be appropriate for the Council to review its procedures to ensure officers carrying out care needs assessments for people with ASD are aware they should seek appropriate specialist input if they do not have knowledge and experience of ASD.
- On balance, the Council is at fault for not retaining or providing an advocate to allow Ms X to challenge the personal budget. The Council has said Ms X’s advocate disengaged after Ms X did not proceed with care and support planning. The Council has also said that the commissioned advocacy service will decide if a person is eligible for support. The Care Act places a duty on the Council to appoint an advocate so it remains responsible for the actions of the commissioned advocacy service. The guidance shows an advocate should assist a person if they wish to challenge a decision or process. The advocate’s email to the Council’s direct payments team show she was aware Ms X wished to challenge the personal budget. So, the Council should have ensured it retained the advocate or provided another advocate to assist Ms X in challenging the personal budget.
- Officer B’s communication with Ms X following the assessment and the setting the personal budget lacked clarity. Officer B’s’ record of her calls with Ms X refer to her care plan without clarifying that Ms X had not been through the care and support planning process. Officer B’s email notifying Ms X of the panel chair’s decision on her personal budget refers to the care plan being agreed for her and sets out how it would be used. This gives the impression that the Council has drawn up a care plan for Ms X without her input and does not state the plan is indicative to give an idea of how the personal budget could be used. In this email officer B explained she will refer the care plan to direct payments team for care planning. But she did not explain that this will be Ms X’s opportunity to be involved in the planning of how her personal budget can meet her needs. So, it is understandable Ms X thought the Council had carried out the care and support planning without involving her and it had not taken account of her needs. This lack of clarity is fault.
- Officer B has said Ms X seemed enlightened about the assessment and care and support planning process. But Ms X had also told the Council she had ASD so it should have ensured that officers communicated clearly with her and provided clear information to her. Officer B has said she explained the process during the assessment. But this information should have been in writing as people cannot be expected to remember complex information during what can be a stressful time and if they have communication needs. The Council appointed an advocate to assist Ms X during the assessment process but this did not absolve the Council from the responsibility of communicating clearly with her.
- The Council is not at fault in contacting Ms X rather than her advocate to discuss the panel’s decision on the personal budget. Ms X had not asked officer B to only contact her advocate at that time. In any event, this did not cause significant injustice to Ms X as officer B did then contact Ms X’s advocate at her request.
- Ms X has said the Council should not have asked her to sign up for direct payments before carrying out a financial assessment. The Council is not at fault in discussing direct payments with Ms X as an option for providing her care. But the Care Act provides that the Council should start the financial assessment after it decides a person has eligible needs and before it starts the care and support planning process. So, the Council should have started the financial assessment once it decided Ms X was eligible for support. Ms X would have had a greater understanding whether she would need to contribute to the personal budget and if so, how much. The Council has demonstrated that it is reviewing its processes to ensure it carries out financial assessments before it starts the care and support planning process.
- The Council delayed in dealing with Ms X’s complaint. The Council’s complaints procedure provides it should respond within 25 working days. The Council greatly exceeded this target as it did not respond until 5 February 2018. It also acknowledged in its response of 25 May 2018 that it failed to deal with Ms X’s complaint of March 2018.
- Ms X did not receive the Council’s response of 25 May 2018. The Council has provided a copy of the email showing it sent the letter to her by email on that date. Ms X has questioned if the copy of the email to her is genuine as its appearance is different to other emails sent by the Council. The Council has explained the email was sent from its complaints management system. I have no reason to doubt the Council’s explanation, so I am satisfied it sent the response to her.
Injustice to Ms X
- The Council’s delay in carrying out the assessment caused distress to Ms X. It also put Ms X to avoidable time and trouble in having to contact the Council again to chase the assessment. The Council’s lack of clarity about her care plan and not having an advocate to help her challenge the personal budget also caused distress to Ms X. The Council’s delays in dealing with Ms X’s complaint and failure to deal with her complaint of March 2018 also caused avoidable time and trouble as Ms X had to make a further complaint. The Council should remedy this injustice.
- The failure to properly consider the potential significance of Ms X’s impending ASD assessment and whether Ms X’s care needs should be reviewed following her ASD diagnosis casts doubt as to whether the Council has properly identified Ms X’s needs, outcomes and the impact of her needs on her wellbeing. So there is also doubt as to whether the personal budget provided is sufficient to meet her needs. The Council should remedy this injustice by carrying out a reassessment of Ms X’s care needs. This should be carried out by an officer with experience of ASD or with input from an officer who has knowledge and experience of ASD. If, following the assessment the Council finds Ms X’s has increased care needs and her personal budget should be increased then it should backdate the payments to July 2017 when Ms X first requested an assessment.
- That the Council:
- Sends a written apology and makes a payment of £250 to acknowledge the distress and avoidable time and trouble caused to Ms X by the Council’s delay in carrying out a care needs assessment, failure to consider the significance of her ASD assessment and diagnosis on her care needs, the Council’s lack of clarity about the care plan, failure to retain an advocate to help her challenge the personal budget and delays in responding to her complaint. The agreed payment is in accordance with our guidance for remedying injustice.
- Reassesses Ms X’s care needs to be carried out by an officer with knowledge and experience of ASD or by an officer in consultation with a person with experience and knowledge of ASD. If following the assessment, the Council finds Ms X’s has increased care needs and her personal budget should be increased then it should backdate the payments to July 2017 when Ms X first requested an assessment.
- Reviews how it provides information to people about the assessment and care and support planning process, including when it should provide written information about its procedures and how it explains the process to people with communication needs. The Council should provide an explanation of the action it intends to take to the Ombudsman.
- Reviews its procedures for providing advocates to ensure they are retained in the event the person assessed wishes to challenge a decision on their assessment, personal budget or care and support plan. The Council should provide a copy of the revised procedures and explanation of the action taken to improve its practice in this area.
- The Council should carry out recommendation a) within one month and recommendations b) to d) within three months of my final decision.
- The Council is at fault as it delayed in carrying out a care needs assessment for Ms X, did not properly consider the significance of Ms X’s pending assessment for autism spectrum disorder when assessing her care needs, did not review if it needed to reassess Ms X’s care needs, did not clearly communicate with Ms X about her care plan, did not retain Ms X’s advocate to assist her in challenging the personal budget and delayed in dealing with her complaint. The Council has agreed to remedy Ms X’s injustice, so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman