Decision : Upheld
Decision date : 26 Jun 2019
The Ombudsman's final decision:
Summary: The Council is at fault as its care needs assessments for Mr Y carried out in April 2017 and January 2018 were inadequate. The Council is at also at fault as it wrongly issued an instruction or policy to officers that it would no longer meet service users’ eligible needs for shopping, domestic and meal preparation without considering if those needs could be met in an alternative way. As a result Mr Y’s care package was not sufficient to meet his needs. This caused significant injustice to Mr Y and Mrs X. Mr Y’s personal assistant also carried out his shopping without pay. The fault also potentially affects other service users. The Council has agreed to remedy the injustice.
- Mrs X complaints on behalf of Mr Y. She complains that the Council:
- wrongly reduced Mr Y’s care package in 2017 as it no longer funds shopping and cleaning despite Mr Y being assessed as having eligible needs in these areas;
- wrongly expects Mr Y to arrange and pay for his own shopping and cleaning services despite the Council’s financial assessment that he is not required to contribute to his care.
- wrongly reduced Mr Y’s social hours when the Council agreed to allow two carers to accompany him;
- allowed Mr Y’s assessments to be carried out by staff who are not qualified to carry out assessments;
- failed to deal with Mrs X’s safeguarding referral
- failed to properly deal with Mrs X’s and her MP’s complaints.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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)
What I have investigated
- I have investigated how the Council assessed Mr Y’s care needs in April 2017 and January 2018.
How I considered this complaint
- I have:
- Considered the complaint and the information provided by Mrs X;
- Discussed the issues with Mrs X;
- Made enquiries of the Council and considered the information provided;
- Invited Mrs 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. 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. Needs can be met in a number of ways and meeting them is not limited to the Council providing services. 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.
- Paragraph 6.90 of the Care and Support Statutory 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 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.
- Mr Y has Huntington’s Disease (HD) which is a complex progressive neurological condition. For a number of years Mr Y received direct payments to enable him to employ a personal assistant (PA) to meet his care needs and a care agency. The Council has assessed Mr Y as having a number of eligible needs including managing and maintaining his nutrition and maintaining a habitable home environment.
- In 2016 the Council assessed Mr Y as requiring a care package of 35 hours of care and support per week to be provided by his PA and a care agency. The Council produced a care and support plan to plan how Mr Y’s direct payments could be used to meet his needs. The care and support plan notes Mr Y requires more prompts and step by step instructions to use a microwave to heat food. The care and support plan notes the Council no longer provides shopping and domestic support and Mr Y would need to pay for these services from his disability benefits. The Council had also previously financially assessed Mr Y as not having sufficient income to contribute to the cost of his care. I refer to this by way of background as the 2016 assessment is not part of my investigation.
- Officer A, a social work assistant, carried out a review on Mr Y’s care and support needs in April 2017. She considered Mr Y continued to have eligible needs including managing and maintaining nutrition and maintaining a habitable home environment. She notes Mr Y is unable to get drinks and food on bad days. In her assessment officer A states that she had advised Mrs X and Mr Y that there would be a reduction in Mr Y’s direct payments as the Council no longer funded shopping, domestic and meal preparation in Mr Y’s care package. She stated that Mr Y is encouraged to use his disability related benefits to fund these services. Officer A recommended his care package be reduced from 35 hours per week to 23.5 hours per week. This included six hours per week for support with social activities and to enable Mr Y to see his children. Officer A notified Mrs X of the reduction in Mr Y’s direct payments. Mr Y’s PA carried out his shopping without pay.
- In August 2017 the Clinical Commissioning Group (CCG) assessed Mr Y to determine if he was eligible for continuing healthcare (CHC) funding. People with long term complex health needs who require care because of those needs may be eligible for such funding. If eligible the NHS will arrange and fund a care package.
- Officer A and Mrs X attended the assessment at Mr Y’s home. The CCG decided he was not eligible at this time. Officer A’s record of a visit to Mr Y notes Mrs X told her that the care package was insufficient as Mr Y could not afford to pay for shopping and cleaning services and he needed prompting to eat. Officer A’s record of the visit notes she told Mrs X that the Council no longer funded domestic and shopping services and that his care and support plan had taken account of Mr Y requiring prompting to eat.
- Officer A carried out a review of Mr Y’s care and support needs in January 2018. Officer A’s record of the review meeting at Mr Y’s house notes she advised Mr Y required a Speech and Language Therapy assessment (SALT) to determine his needs before she could increase his direct payments.
- Officer A’s assessment notes Mr Y’s PA shops for him. She also cleans and keeps his house free from spillages and other hazards. Officer A notes in the assessment that Mr Y will have to fund these activities from his personal income as the Council no longer funds these.
- A therapist visited Mr Y to carry out a SALT assessment in January 2018. However, she was unable to carry out the assessment as Mr Y did not want to be assessed. The assessment was carried out in February 2018. The SALT therapist concluded that Mr Y was at risk of choking while eating due to his illness and this could be minimised with supervision.
- In late February 2018, Mrs X made a safeguarding referral to the Council. She raised a number of concerns about Mr Y including that he suffered regular falls and choking on food. The Council’s records note an officer discussed Mrs X’s referral with her in early March and noted her concerns were about Mr Y requiring more care to support him with eating and needing two people to assist when he goes out. The records show the officer reviewed the records and noted officer A was waiting for the outcome of the SALT assessment for Mr Y. The officer advised Mrs X that the Council would not take further action on her referral as she needed to discuss her concerns about Mr Y’s care with officer A and await the outcome of the SALT assessment.
- The Council’s records show it received the SALT assessment in March 2018. It convened a multi disciplinary meeting with professionals involved in Mr Y’s care and the care agency due to concerns about Mr Y’s behaviour towards carers and his nutrition. The record of the meeting notes SALT’s recommendation that Mr Y have additional time for supervision of his eating but this supervision should be discreet. The record also notes the care agency reported Mr Y would sometimes refuse meals. The notes record the meeting agreed to ask the SALT therapist to carry out a mental capacity assessment for Mr Y to determine if he understood the risks of choking.
- The SALT therapist and officer A visited Mr Y in April 2018. The notes of the visit record that Mr Y understood SALT’s recommendations to reduce the risk of him choking. Officer A noted Mr Y had capacity to make an informed decision about eating unsupervised. However, she recommended Mr Y’s care package be increased to 26 hours to allow time for carers to supervise Mr Y’s main meal.
- The Council’s records note that one of the professionals involved in Mr Y’s care informed the Council that Mr Y’s PA no longer carried out Mr Y’s shopping and domestic tasks as Mrs X was not paying her. She was concerned Mr Y would not have food in the house. Officer A carried out a welfare check and found Mr Y did have food.
- The Council convened a multi disciplinary meeting to discuss Mr Y’s care. The meeting decided that Mr Y’s care and support needs should be reassessed due to concerns that Mr Y’s care package may not be sufficient to meet his needs as his condition, such as his ability to swallow, had deteriorated. It also considered Mr Y needed a more structured care package. The Council increased Mr Y’s care package to 36 hours per week. The Council has said it also reassessed Mr Y’s needs as Mrs X raised concerns that his condition had deteriorated. while it was assessing him. It has said this was because Mr Y’s needs were increasing.
- When reassessing Mr Y’s needs, the Council consulted medical professionals involved in Mr Y’s care, including his dietician. The Council also consulted specialists in HD. It recommended a care package of 52.5 hours per week. This included a significant increase in hours to support Mr Y with his nutrition. The CCG also assessed Mr Y as now being eligible for CHC funding so it is now responsible for Mr Y’s care.
- In February 2018 Mrs X made complaints to the Council that it did not have sufficient understanding of Mr Y’s condition, that Mr Y did not have sufficient time in his care package to support him with eating and the number of carers required to support Mr Y on social outings. She also complained about the stress and burden placed upon her.
- The Council considered her complaint at stage one of its two stage complaints procedure but did not uphold her complaint. In its reply it advised Mrs X that Mr Y’s social hours would be reduced to three hours to allow two carers to accompany him.
- Mrs X made further complaints in April, May and June 2018. Mrs X’s MP also referred Mrs X complaints to the Council on her behalf. The Council’s complaints procedure provides a service director will respond to a complaint from an MP. A senior officer should respond at stage two of the complaints procedure. A senior officer responded to Mrs X’s complaint in July 2018. He did not uphold Mrs X’s complaint. In the response the senior officer said it does not allocate funds to carers to undertake shopping.
- Mrs X’s MP also made a complaint. A senior officer responded to the complaint. The Council has acknowledged there was a delay in responding to Mrs X’s complaint and to her MP. It has said this was due to unforeseen circumstances and to include Mrs X’s complaint to her MP in its response.
- Mrs X made a complaint to the Council’s monitoring officer. In her response the officer stated that the Council does not have a policy not to allocate funds for carers to carry out shopping. She acknowledged the Council was wrong to imply that it was Council policy not to allocate funds for shopping and domestic tasks in Mr Y’s assessments of 2017 and January 2018. The Council considered that at the time of the assessment in 2017 Mr Y’s shopping needs could be met by online shopping.
- In response to my enquiries the Council has acknowledged that Mr Y had eligible needs for support with his shopping and domestic tasks to keep his home free from hazards which it should have met in April 2017. At the time the Council considered Mr Y’s eligible need for shopping could be met by online services. But this was not possible and it could not meet this need in an alternative way. So its decision to end support was not in accordance with the Care Act 2014.
- The Council has also acknowledged Mr Y had ongoing support needs with domestic tasks to ensure his home was free from hazards and it should have continued to support these needs.
- Mrs X has made a number of complaints. The key issue is whether there was fault in the assessment of Mr Y’s care needs which could call into question the adequacy of overall his care package. I have not considered the Council’s decisions on each element of Mr Y’s care package apart from the shopping, domestic and meal preparation or whether officer A was appropriately qualified.
Mr Y’s care package
- The Council is at fault in reducing Mr Y’s care package from 35 hours to 23.5 hours on the basis that it no longer funded shopping, domestic and meal preparation tasks. The Council has said it has no such policy. But officer A, her supervising officer and the senior officer responding to the stage two complaint were clearly under the impression this was the Council’s policy. The officer who completed Mr Y’s assessment and care and support plan of 2016 also refers to the Council no longer funding domestic and shopping tasks. So, on balance, I consider the Council had communicated to officers an instruction or policy that the Council would not meet shopping and domestic eligible needs. This is fault. The Council cannot have a blanket policy to not fund identified eligible needs if those needs cannot be met in an alternative way. Any such decision must be based on the service user’s eligible needs and the care and support planning process to determine how their eligible needs can be met.
- I have not investigated if there was fault in how the Council carried out the care needs assessment in August/September 2018 and reached its decision to recommend a care package of 52.5 hours per week. But I have considered if the fact the Council recommended such a significant increase is evidence of fault in how it carried out the assessments of April 2017 and January 2018.
- There is some evidence Mr Y’s condition had deteriorated as he became eligible for CHC funding in September 2018. But the Council has not provided sufficient information to show this significant increase in need and recommended provision was solely attributable to Mr Y’s worsening condition. Rather, I consider it calls into question the adequacy of the assessments in April 2017 and January 2018. The assessment in August/September 2018 was comprehensive and had regard to the overall impact Mr Y’s condition had on his needs. It also had appropriate input from a range of medical professionals and HD specialists. This did not happen in the earlier assessments where the Council had insufficient specialist input and did not fully understand the impact of Mr Y’s condition on his needs and wellbeing as a whole. As a result the Council did not provide an adequate care package to meet Mr Y’s needs.
- The Council’s records show it considered Mrs X’s safeguarding referral of February 2018, discussed it with her and explained to Mrs X why the Council would not take further action on her referral. Mrs X strongly considers the Council should have taken action and that the Council’s decision is not in accordance with the Safeguarding Board’s decision-making framework. The Council’s records do not show how it assessed the risk to Mr Y. But this does not necessarily undermine its decision. The Council considered the referral and has explained its reasons for not taking further action. On balance, the outcome would have been no different for Mr Y even if the Council had taken action, as it is likely it would have referred Mr Y for a care needs assessment.
- Mrs X has also provided a copy of an email she sent to the Council raising concerns about Mr Y’s care while his PA was away and Mrs X was in hospital. Mrs X considers the Council should have considered this as a safeguarding referral. The Council’s records show it contacted Mr Y’s care agency to confirm it could cover for Mr Y’s PA while she was away. So there is no evidence of fault here.
- The Council replied to Mrs X’s complaints and those sent on her behalf by her MP. The Council has acknowledged it delayed in responding to her at stage two of its complaints procedure. But this delay was not excessive and it was in part caused by replying to Mrs X’s further complaints.
- Mrs X considers the Council did not follow its complaints procedure when responding to her complaint as a service director did not respond to the complaint made by her MP in accordance with its complaints procedure. This does not cause significant injustice to Mrs X to warrant pursuing this matter further.
- Mrs X has said she raised numerous verbal complaints about the adequacy of Mr Y’s care package. I do not know if the Council should have treated the points raised by Mrs X with officers as complaints. But I will not investigate this matter further as it does not cause injustice to Mrs X separate to that caused by Mr Y’s inadequate care package.
- Mrs X considers the inadequate care package significantly affected Mr Y’s wellbeing. She considers it caused Mr Y to lose a significant amount of weight as it did not meet his nutritional and other needs. Mrs X has provided reports from Mr Y’s dietician showing his weight loss and showing his weight has increased since receiving CHC funding and the increased care package being in place. On balance, I consider the inadequate care package was detrimental to Mr Y’s wellbeing and could have contributed to his weight loss.
- The faults by the Council caused significant injustice to Mrs X. The inadequate care package placed a greater burden than necessary on Mrs X as she had to meet some of Mr Y’s needs herself and pursue the inadequate care package with the Council. This caused significant distress to her and put her to avoidable time and trouble. Mrs X paid for Mr Y’s PA to do his shopping and domestic tasks from June 2018.
- Mrs X has also said that the inadequate care package caused distress to Mrs X and Mr Y’s children as they witnessed Mr Y losing weight, did not have sufficient support when visiting him and missed out on activities with Mr Y. I consider it is likely the inadequate care package caused some distress to the children as they witnessed Mr Y’s needs not being met.
- Mr Y’s PA also suffered an injustice as she carried out his shopping and domestic tasks from April 2017 to June 2018 without pay. The Council should remedy the injustice to Mrs X, Mr Y and their family and to Mr Y’s PA.
- The Council should:
- Send a written apology and make a payment of £3000 Mr Y to acknowledge the inadequate care package was detrimental to his wellbeing and could have contributed to his weight loss.
- Send a written apology and make a payment of £1000 to Mrs X to acknowledge the distress and avoidable time and trouble caused to her and the distress caused to the children by the inadequate care package.
- Reimburses Mrs X for paying Mr Y’s PA for shopping and domestic tasks from June 2018 to the date when Mr Y became eligible for CHC funding. Mrs X may need to provide evidence to the Council of the payments made to Mr Y’s PA. If this is the case, the Council should discuss with Mrs X what evidence it needs.
- Make a payment of £200 to Mr Y’s PA to acknowledge that she carried out Mr Y’s shopping and domestic tasks without pay between April 2017 and June 2018 due to the Council wrongly not meeting Mr Y’s eligible need for shopping.
- Review its procedures for carrying out care needs assessments to ensure the Council consults appropriate professionals and specialists for service users with conditions it does not have appropriate knowledge of. This is to ensure the Council has sufficient information on the effect of a condition on a service user’s needs and wellbeing. The Council should inform the Ombudsman of the action it will take to improve its practice in this area.
- Review its policy on meeting eligible needs to ensure the Council is not instructing officers that it will no longer pay for shopping, domestic and meal preparation tasks if those needs cannot be met in an alternative way. The Council should inform the Ombudsman of the action it will take to improve its practice in this area.
- Review the care packages of service users who may be affected by the Council’s fault in issuing its policy or instruction that it would not fund shopping, domestic or meal preparation services to see if those needs were met in an alternative way. The Council should reimburse any service users whose eligible needs were not met in an alternative way. The Council can carry out such as review as part of the service user’s six monthly review. The Council should also report the findings of its review into whether other service users have been affected to the Ombudsman.
- The Council should take the action at recommendations a), b) and d) within one month of the final decision. The Council should take the action at recommendations c), e) and f) within three months and the action at g) within six months of the final decision.
- The Council is at fault as its care needs assessments for Mr Y carried out in April 2017 and January 2018 were inadequate. The Council is at also at fault as it wrongly issued an instruction or policy to officers that it would no longer meet service users’ eligible needs for shopping, domestic and meal preparation without considering if those needs could be met in an alternative way. As a result Mr Y’s care package was not sufficient to meet his needs. This caused significant injustice to Mr Y and Mrs X. Mr Y’s personal assistant also carried out his shopping without pay. The fault also potentially affects other service users. The Council has agreed to remedy the injustice so I have completed my investigation.
Parts of the complaint that I did not investigate
- Mrs X considers Mr Y’s care package in 2016 was insufficient. I have not investigated this complaint as it more than 12 months old and I am satisfied Mrs X could have made this complaint to us earlier.
- Mrs X is unhappy with how the Council carried out the reassessment of Mr Y’s needs in August/September 2018. She considers the Council did not carry out the assessment in accordance with the Care Act and it should have recommended a care package of over 60 hours per week. I have not investigated this complaint as it is a new issue which has arisen since I started my investigation on Mrs X’s complaint.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman