Decision : Upheld
Decision date : 26 Jul 2018
The Ombudsman's final decision:
Summary: Ms X complains the Council has failed to assess her needs properly or consider her eligibility for support properly under the Care Act 2014. The Council’s assessment does not clearly address her eligibility under the Care Act. It needs to correct that error by reassessing her.
- The complainant, whom I shall refer to as Ms X, complains the Council has failed to assess her needs properly or consider her eligibility for support properly under the Care Act 2014
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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 documents provided by Ms X’s Advocate;
- discussed the complaint with the Advocate;
- considered the comments and documents the Council has provided in response to my enquiries; and
- shared a draft of this statement with Ms X, Advocate and the Council, and invited comments for me to consider before making my final decision.
What I found
- Ms X lives on her own in sheltered housing which is part of an “extra care” scheme. An Assessor visited Ms X on 16 March 2018 to assess her needs. Her Advocate and daughter were with her.
- Ms X said she wanted a flexible care package which would keep her independent and help manage her fatigue. Ms X said she needed to apply creams to her legs but could not do this as she cannot bend down for prolonged periods. She said she could only shower once a week because she tires easily. She said she would normally strip wash but struggles to wash her back and bottom, and to dry her feet. She said she could do her own laundry but struggled to take the washing out of the machine because of its added weight. She said she could wash her own dishes but could only stand for five minutes to do this.
- The section of the assessment on Care Act eligibility is blank. It says the section is for “Things we need to consider under the Care Act eligibility domains that may have a significant impact on your health and wellbeing”.
- It says Ms X would benefit from using “incidental care” where she lives if she needs help with continence, to ensure she is cleaned properly and to prevent sores occurring. It says: “I don’t believe a traditional care package would help [Ms X] as she doesn’t feel that the structure of this benefits her as she would like to be able to be flexible and when she feels she is having a bad day, she is able to have more help. I also believe that this is something that could be managed under the incidental care” where she lives. It says the Assessor advised the scheme manager where she lives to help Ms X get a timed medication dispenser via her Borough Council. The Assessor also suggested a continence assessment with a district nurse so she can get the correct continence pads and have regular checks for skin integrity. It also says the Borough Council would assess Ms X for a wet room or alternative shower provision, so she could shower regularly when able, rather than work around a carer’s or care agency’s visits.
- The Council’s Peer Forum considered Ms X’s case on 29 March. It noted it was “clearly documented that [Ms X] is able to manage daily tasks independently”.
- The Council wrote to Ms X on 3 April. It said it agreed with the opinion of the Assessor. It said the assessment highlighted positive changes made by Ms X to allow her to be independent in everyday life. It noted suggestions had been made, such as making use of the incidental care where she lives. The Council said its Peer Forum had considered her assessment on 29 March and agreed with the assessment. It said that meant “at this time you do not have a care need”. However, it said the Peer Forum felt Ms X may benefit from the Independent Rehabilitation Team, which could look at her mobility and transfers, and do a falls risk assessment.
- The Advocate complained to the Council. When the Council replied on 24 April it said: “at this present time, Ms X does not have an eligible care need”.
- The next day the Advocate complained the Council had not addressed the eligibility criteria under the Care Act. He said Ms X cannot: wash or dress herself properly; prepare food; maintain a habitable home. When the Council replied it said it had fulfilled its statutory duty and said Ms X could complain to the Ombudsman.
Is there evidence of fault by the Council which caused injustice?
- The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs. 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. 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;
- because of the needs, the adult must be unable to achieve two or more of these "outcomes”:
- managing and maintaining nutrition;
- maintaining personal hygiene;
- managing toilet needs;
- being appropriately clothed;
- being able to make use of the 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;
- carrying out caring responsibilities for a child; and
- because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.
- When the eligibility determination has been made, councils must provide the person with a copy of the decision.
- Being “unable to achieve” an outcome includes: needing help to achieve it; experiencing significant pain, distress or anxiety when achieving it; endangering health or safety when achieving it; and taking too long to achieve it.
- Councils have a duty to meet eligible care needs. Needs can be met in various ways, including direct care provision or arranging for others to provide care in either the private or voluntary sectors.
- The Council does not accept Ms X has eligible care needs under the Care Act. However, its assessment does not address all the outcomes identified in the Regulations. That means it is flawed. It also means it is unclear how the Council has reached its decision. There is a basic need for councils to explain the reasons for their decisions. It is particularly important for them to explain negative decisions, as those are the ones people are most likely to challenge. It appears from Ms X’s assessment that some tasks may take her longer to achieve. But the assessment does not explain why that is not enough to meet the eligibility threshold. The assessment says a traditional care package would not help Ms X. It is unclear what relevance this has if Ms X does not have eligible care needs.
- These failings are fault by the Council. The Council needs to reassess Ms X, addressing all the outcomes and explaining why it is satisfied she does not have eligible care needs, if that is the case.
- I recommended the Council:
- reassesses Ms X’s needs making sure it addresses all the required outcomes explaining how she is able to achieve them in such a way that does not meet the eligibility threshold (if that is the case); and
- considers what action it needs to take to make sure assessors consider all the required outcomes and provide reasons for their decisions.
The Council has agreed to do this.
- I have completed my investigation as the Council has agreed to take the action I recommended.
Investigator's decision on behalf of the Ombudsman