Decision : Upheld
Decision date : 27 Sep 2019
The Ombudsman's final decision:
Summary: The Council significantly delayed completing an assessment of Mr B’s social care needs, failed to complete a support plan before reducing his personal budget and failed to properly involve Mr B in the assessment and support planning process. The Council also reneged on an agreement to provide an independent social worker to support Mr B to carry out a self-assessment and it failed to properly deal with his complaints. The Council has agreed to make a payment to Mr B and take action to prevent similar failings in future.
- Mr X, a solicitor, is complaining on behalf of Mr B. Mr X complains that the Council tried to reduce Mr B’s personal budget on three occasions, without carrying out a proper assessment of his social care needs and without properly involving Mr B in the process. Mr X complains that the Council took three years to carry out a proper assessment, refused to fund an independent support planner and reneged on a promise to arrange for an independent social worker to carry out the assessment. He also complains about the way the Council dealt with Mr B’s complaints. Mr X says that these failings caused Mr B significant distress and unnecessary legal expenses.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- considered the complaint and the documents provided by the complainant;
- discussed the issues with Mr X, Mr B and Mr B’s support planner;
- made enquiries of the Council and considered the comments and documents the Council has provided; and
- given the Council, Mr X and Mr B the opportunity to comment on my 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. The assessment must be of the adult's needs and how they impact on their wellbeing and the results they want to achieve. The process must be person-centred throughout, involving the person and supporting them to have choice and control.
- Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person's care and support needs.
- The Care and Support Statutory Guidance says that the person must be genuinely involved and influential throughout the planning process and should be given every opportunity to take joint ownership of the development of the plan with the local authority if they wish, and the local authority agrees. There should be a default assumption that the person, with support if necessary, will play a strong pro-active role in planning if they choose to.
- A supported self-assessment is an assessment carried out jointly by the adult with care and support needs or carer and the local authority. Local authorities must offer individuals a supported self-assessment if the adult or carer is able, willing and has capacity to undertake it.
Background, key events and analysis
- Mr B has complex physical health concerns resulting in the need for a significant degree of care and support. He is 39 years of age and lives in a two-bedroom property on his own.
- At the beginning of 2015, Mr B was receiving 91 hours of support each week. This was partly funded by the Council and partly funded by the Independent Living Fund (ILF). In 2014, the government announced that it would be closing the ILF on 30 June 2015 and passing the responsibility for supporting ILF users to councils.
- In May, the Council commenced a reassessment of Mr B’s social care needs. A social worker then spoke to Mr B about reducing his package of care to 77 hours each week, plus 5 hours flexible support. Mr B felt that the Council had not properly considered all the support he needed. As the ILF was closing, the Council agreed to provide an interim support plan from 1 July 2015 containing the same amount of money that Mr B had previously received. The Council accepts that it did not complete the assessment of Mr B’s social care needs. This was fault.
- In August, the Council agreed to make some changes to Mr B’s personal budget and draft a new support plan so that Mr B could attend college. It then agreed to temporarily increase Mr B’s personal budget after he told the Council in September that he needed more support to have contact with his children.
- Mr B’s advocate told the Council that she had met with Mr B to put together a proposed support plan but she considered it was far too complex for them to complete together. Mr B then asked the Council if it would fund an independent support planner. The Council’s records show that a social worker sought guidance from the Council’s legal team, but there is no evidence to show that any advice was provided. The Council then refused Mr B’s request for an independent support planner. On the basis of the evidence I have seen, I do not consider it likely that this decision was made properly. The decision appears to have been made without any consideration for the advocate’s view that it was too complex for them to complete together, and without receipt of the legal advice requested.
- In November, following requests from Mr B for additional support, the Council decided to carry out an assessment of Mr B’s social care needs, to include an assessment by an Occupational Therapist.
- An Occupational Therapist visited Mr B several times between January 2016 and April 2016 in order to complete her assessment. Mr B disagreed with the Occupational Therapist’s assessment of the amount of time it would take him to carry out daily living activities.
- In June, after the Council had refused several requests from Mr B for it to provide and fund an independent support planner, Mr B decided to arrange one himself. In August, he forwarded a draft support plan to the Council which he had completed with the Independent Support Planner. Mr B considers the Council ignored it. The Council has since said that it did consider the plan, but it did not incorporate all the necessary elements. The Council should have explained this to Mr B at the time.
- During a meeting in June with the social worker and his manager, Mr B was told that all the information they had would be gathered into an assessment and put to the Council’s Resource Allocation Panel.
- The following month, Mr B’s social worker told him that he was working on the reassessment and hoped to have something to put to the management team and then to the panel the following week. Mr B then complained to the Council that he was being excluded from the care planning process which was in breach of the Care Act. In the Council’s response, it said that the support planning process was ongoing and Mr B would be fully involved in it.
- The following month, the Council sent a review document to Mr B which showed that the funding for his support would be reduced by around 50%. The Council told Mr B that the new budget had been signed off by senior management and the old package would not be reinstated. The Council failed to follow the correct procedures when it decided to reduce Mr B’s funding. In particular, it failed to complete a support plan and failed to properly involve Mr B in the assessment and support planning process. This was fault.
- The Council’s procedures state that direct payment recipients should be given four weeks’ notice of any changes. Mr B received the review document on 19 August and his budget was reduced on 29 August. The Council did not give Mr B sufficient notice. This was fault.
- Mr B complained to the Council about its decision to reduce his budget. In the Council’s response of 23 September, it acknowledged that it should not have cut Mr B’s payments. It said that it would reinstate and backdate his payments and they would continue to be paid for 28 days to enable further discussion and the completion of an assessment and support plan.
- Mr B engaged the services of a solicitor, Mr X, and on 26 September, Mr X sent a pre-action protocol letter to the Council. Mr X said that the Council had failed to carry out a lawful assessment of Mr B’s needs, the care and support review document was unlawful and irrational, the Council had failed to provide rational reasons for the reduction in his package and had not given him the opportunity to have the decision reviewed before the reduction was made. Mr X said that he considered the Council’s actions amounted to a violation of Mr B’s human rights.
- Mr X called on the Council to reinstate Mr B’s package to the one that was in place prior to 29 August 2016. He asked that the Council allow Mr B to carry out a self-supported assessment, to fund an organisation to carry out the assessment and to provide an independent support planner. Mr X was not aware that a few days earlier the Council had responded to Mr B’s complaint and agreed to reinstate his payments.
- On 5 October 2016, the Council again acknowledged that it should not have reduced Mr B’s package. It repeated that it would be reinstated for 28 days to enable further discussion to take place and for the completion of the assessment and support plan. Mr X considered this time frame added to Mr B’s distress. He asked the Council to explain why the package would only be in place for 28 days and said that it should be in place for as long as it took the Council to carry out a lawful reassessment and care and support plan.
- The Council responded within two weeks and explained that it considered 28 days to be a reasonable length of time to evaluate Mr B’s social care needs but it would not reduce his package on the basis of the expiry of the 28 day period.
- In October, the Council agreed for Mr B to carry out a supported self-assessment, with an independent social worker.
- The Council sourced a social worker to complete the reassessment and wrote to Mr X providing the social worker’s curriculum vitae (CV) towards the end of January 2017.
- Mr X was not happy with the person suggested and said that he was not a qualified or registered social worker and was not independent because he had a council email address. The Council says there was an omission on the agency CV which was submitted but that according to the Health Care Professionals Council, the agency worker was a registered social worker. On the balance of probabilities, I consider it likely that the social worker was registered and qualified.
- The Council then wrote to Mr B in April and said that a council social worker and occupational therapist would be commencing an assessment of his needs. The Council had previously given a clear undertaking to provide an independent social worker. Going back on that agreement was fault.
- Mr X says that this caused Mr B significant distress and resulted in his hospitalisation. Mr B felt the Council was trying to proceed with an in-house assessment whilst ignoring his concerns.
- Mr X threatened to judicially review the Council in May and July. He said that he was challenging the Council's decision to renege on its previous agreement for Mr B to be allowed to carry out a supported self-assessment and for the Council to fund an independent social worker and support planner.
- In June, the Council explained why it considered it would be best for a council social worker to carry out the assessment, or to support Mr B to carry out a self-assessment.
- Mr X told the Council that Mr B did not agree to the Council’s proposal. He explained that the Council's previous undertakings had given rise to a reasonable expectation by Mr B that any reassessment would be carried out by an independent social worker and not one employed by the Council. Mr X explained that Mr B did not trust any employee of the Council to carry out the reassessment of his needs.
- In October, the Council agreed to fund an independent social worker. The Council and Mr X jointly instructed one to support Mr B to produce a self-assessment. The assessment was completed in April 2018.
- Mr X has also complained about the way the Council dealt with the complaints he made on behalf of Mr B. He says that the Council failed to follow The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. In particular he complains that the Council’s response did not include an explanation of how the complaint had been considered, it failed to investigate his specific points of complaint and failed to tell Mr B of his right to take the complaint further if he was not satisfied with the response.
- The Council has accepted that its response did not accord with the Regulations. It has explained that this was because the response was sent by its legal team, rather than the team which normally deals with complaints.
- In May 2018, Mr X complained to the Ombudsman about the Council’s actions and we asked the Council to respond to his complaints. The Council sent us a copy of its response on 27 September. Mr X and Mr B say that they did not receive a copy of the response until 13 November 2018. This delay was fault.
- In the Council’s final response to Mr B’s complaint, it extended an unreserved apology for not providing him with the expected standards it sets out to provide. It has accepted that its decision to reduce Mr B’s funding was not made in accordance with the Care Act or statutory guidance. It says that its records do not provide any rationale for the decision to cut his budget without carrying out a support plan.
- The Council has offered to pay Mr B £1600; £600 for the delay in the completion of the reassessment of his care and support needs and £1000 for the emotional impact and for any undue distress or upset its action may have caused.
- In order to prevent similar failings in future, the Council says it has implemented a case recording and supervision policy across all teams. It has also put in place a step by step guide to support staff to be clear of the process.
- Mr X and Mr B do not consider the remedy offered by the Council is sufficient. I have considered how the failings identified in this case have affected Mr B.
- The Council’s failure to properly consider Mr B’s request to provide and fund an independent support planner caused him frustration. Mr B sourced a planner himself but has not paid for the planner’s services. I am satisfied that the Council has since properly considered his request. It has decided not to fund an independent support planner because Mr B has the support of a Personal Assistant and Independent Advocate. This is a decision it is entitled to reach.
- The Council’s delay in completing Mr B’s social care needs assessment caused him significant frustration. I do not consider it likely that Mr B would have received more funding if the assessment had been completed sooner.
- I consider the Council’s failure to follow the correct procedures when it reduced Mr B’s personal budget in August 2016 caused Mr B significant distress and directly resulted in Mr B incurring unnecessary legal costs. I consider the Council should reimburse Mr B for the £1261.86 he paid to receive a Legal Aid Certificate and for legal costs of £1450 which were not covered by legal aid. This is because I consider the Council’s improper decision to cut Mr B’s budget in August 2016 made it necessary for Mr B to seek legal assistance, and Mr B continued to need this support due to the Council’s subsequent failings.
- Mr B says that as a result of the Council’s decision to reduce his budget, he had to make redundant a Personal Assistant who had supported him for nine years. The evidence shows that the Personal Assistant wanted to reduce his hours before Mr B’s budget was cut in August 2016. He continues to work with Mr B. I do not consider Mr B has lost the support of this Personal Assistant as a result of the failings identified in this case.
- I consider the Council’s failure to properly respond to Mr B’s complaints, and its decision to renege on its previous agreement to provide an independent social worker also caused Mr B significant distress and frustration and put him to avoidable time and trouble. It is not possible for me to conclude that the Council’s actions resulted in Mr B’s hospitalisation.
- Within four weeks, the Council will:
- make a payment of £2711.86 (£1261.86 + £1450) for Mr B’s legal costs;
- make a payment of £1600 to Mr B for the significant frustration and distress caused by the failings identified in this case. In reaching this figure, I have taken into consideration that Mr B has paid over £100 in counselling to address his feelings about the Council’s actions.
- the Council will arrange training on the Care Act for its adult social care staff. It should ensure the failings in this case are highlighted to staff to prevent similar failings in future. Alternatively, the Council should provide evidence that it has already highlighted the failings in this case to staff and that it has provided training on the Care Act within the last 12 months; and
- the Council will review its procedures for dealing with complaints to ensure that it follows The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 for all relevant complaints, including those which its legal team is dealing with.
- I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice to Mr B. The action the Council has agreed to take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman