Decision : Upheld
Decision date : 11 Jan 2019
The Ombudsman's final decision:
Summary: Mr X and Ms Y complain the Council unfairly reduced their care packages and left them without support. The Ombudsman finds the Council should have completed a combined assessment and the failure to do so was fault. This has caused an injustice to Mr X and Ms Y as it led to uncertainty about the reasons for the Council’s decision. However, there is no evidence that the Council failed to ensure Mr X and Ms Y’s care needs were being met. A care agency was put in place to manage sickness from their personal assistants and it offered to move them onto a managed account. The Council has agreed with our recommendation to now carry out a combined assessment.
- The complainants, Mr X and Ms Y, complain the Council unfairly reduced their care package from 28 hours per week to six which has left them without support. Specifically, they complain that:
- When making the decision to reduce their care, the social worker relied on an old, inaccurate assessment that should have been destroyed.
- The assessment contains factual inaccuracies.
- The Council failed to provide them with a suitable hourly rate for them to commission the care they need.
- The Council unfairly removed Ms Y’s carer support.
- The Council failed to ensure they had adequate support when their Personal Assistants (PA’s) were unable to provide support because of long term sickness.
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). I have decided to exercise discretion to consider events from September 2016 onwards which is when the Council completed a new assessment. Mr X and Ms Y have been complaining to the Council about this assessment since this date.
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
How I considered this complaint
- I have:
- Read the papers submitted by Ms Z on behalf of Mr X and Ms Y.
- Considered the Council’s comments and the supporting documents it provided.
- Provided both parties with the opportunity to comment on this draft decision.
- Considered the detailed response sent by Ms Z to 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.
- Local authorities may combine an assessment of an adult needing care and support or of a carer with any other assessment it is carrying out either of that person or another where both the individual and carer agree, and the consent condition is met in relation to a child. This will also avoid the authority carrying out two separate assessments when the two assessments are intrinsically linked. If either of the individuals concerned does not agree to a combined assessment, then the assessments must be carried out separately.
- 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 detail of how the person will use their personal budget will be in the care and support plan.
Events leading to the complaint
The Council assessed Mr X
- In August 2016, the care agency contacted the Council because it was concerned Mr X was using his hours inappropriately. The Council contacted Ms Y to arrange a review because Ms X was reluctant to engage with the Council directly. Ms Y said she wanted to make sure her advocate, Ms Z, was also present and the Council arranged a home visit to complete the care needs assessment for Mr X in September 2016. Prior to the visit it spoke to Business A who said Mr X had 22 hours of support from a PA - which was being covered by the care agency - and 50% of the hours were being used for social support and the rest for cleaning.
- The Council assessed that the support from the care agency was not working as well as it could do because Mr X did not trust the carers and would not let them provide personal care. His social activities had also reduced because of the lack of trust. The assessment said:
- Ms Y would continue to provide personal care, but once trust had built up he should receive 3.5 hours of support per week.
- Ms Y to provide meals for Mr X alongside the support of her PA.
- Mr X should receive 6 hours of support per week to help him engage in social activities.
Mr X was unable to maintain his home but Ms Y had a private cleaner alongside support from her PA.
- The Council said the support Ms Y was providing to Mr X would be reflected in her assessment and care and support plan which it would now arrange. The Council also raised concerns that the budget was not being managed properly and offered Mr X a managed account where the Council would take control and commission a different care provider. Ms Z told us no such offer was ever made. On receipt of the assessment, Ms Y raised concerns. She said the Council was reducing Mr X’s hours and pushing all his support onto her. Ms Z said she would like to meet with Mr X to discuss the assessment and get his comment but the earliest she could meet with him was December 2016.
- In October 2016, Ms Y raised concerns about her PA also going on sick leave. Business A told the Council Ms Y had back-up support from the care agency but it was her responsibility to put this support in place. The Council said if Ms Y was struggling she should move to a managed account, it also allocated Ms Y a social worker for an assessment of her needs. Ms Y said she could not meet with the Council until January 2017.
- After receiving the comments from Mr X in December 2016, the Council updated the assessment to include them. It did not remove any of the social worker’s analysis but incorporated his comments alongside. It then held a care and support planning meeting to finalise the care package and Mr X agreed to move to a managed account. Ms Z denies Mr X agreed to this.
Council assessed Ms Y
- In January 2017, Ms Z complained to the Council on Mr X and Ms Y’s behalf. She said Mr X’s assessment contained factually incorrect information and ignored Ms Y’s needs as a carer. Their MP also wrote to the Council. The Council responded to the concerns and said it had assessed Mr X’s needs and was entitled to take account of the care Ms Y provides. It acknowledged it had cancelled Ms Y’s scheduled January assessment appointment and arranged a new appointment in March which accounted for Ms Z’s availability.
- In March 2017, the Council completed an assessment on Ms Y. The assessment acknowledged that previously Ms Y and Mr X received support from two PA’s but both were now on long term sick leave and they were being supported by a care agency. The Council said Ms Y was not able to maintain her own home and, at times, needed some support accessing the community and preparing food. The assessment did not specify how many hours per week of care Ms Y should receive. The Council then sent this assessment to Ms Y for comment so it could move onto the care planning stage.
- In April 2017, Ms Z raised a formal complaint with the Council. She said Mr X and Ms Y both wanted new social workers because when the social worker completed an assessment on Mr X she brought an old care and support plan with her; which had no cleaning support on. Ms Z said they do not understand how the Council can reduce their hours when their health conditions are degenerative.
- The Council responded and said, at the care planning meeting in December 2016, all parties agreed that cleaning would go on Ms Y’s care plan. Ms Z says Ms Y never agreed to this and would never have done because she is not physically able to do it. The Council said Mr X and Ms Y were using the personal budget for cleaning tasks and not meeting any of their other care needs. It said if they had any concerns about sickness of their PAs they would need to speak to Business A and directed them to approach the Ombudsman if they were unhappy.
- In May 2017, Ms Z sent the Council comments on Ms Y’s March assessment. The Council said the comments included different information from information gathered at the assessment meeting. Therefore, it added the comments alongside the Council’s assessment and sent it back to Ms Y. Ms Y reviewed the assessment and said she was not prepared to sign it and therefore the Council did not proceed to the care planning stage. After Ms Y refused sign off the assessment, and the Council could not proceed to the care planning process, it sought legal advice which said to provide an analysis on Ms Y’s comments in the assessment. The Council did this and sent the revised assessment to Ms Y in September 2017.
Mr X and Ms Y remain unhappy with assessments
- Ms Y remained unhappy with the assessment. She said the Council should have increased the budget so they could increase the hourly wage to help find new PAs. Ms Y said she was having to pay for a private cleaner because their needs were not being met by the care plan and they cannot be met in 12 hours of support per week. Ms Y also raised concerns about lack of support while the PAs were on sick leave. The Council said it was entitled to review care and support plans and can take account of available resources; such as private chargeable services. It also said neither Mr X or Ms Y were left without support because support was provided by a care agency.
- Throughout November and December 2017 Mr X and Mr Y continued to complain to the Council about lack of support. The Council maintained its position that the care agency was meeting their needs and it was entitled to take into account any support Ms Y provides Mr X. The Council reiterated that Ms Y should use NHS transport to medical appointments. It also provided them with a list of alternative care providers because of the difficulties they said they were experiencing with their current provider.
- The Council re-allocated Ms Y’s case to another social worker who visited Ms Y to try and complete the care planning process. At this review, the social worker raised concerns that Mr X and Ms Y were using most of their hours for cleaning; which was also duplicated by a private cleaner. She explained the Council would only fund a basic clean, not a deep clean.
- In June 2018 Ms Z approached the Ombudsman because Mr X and Ms Y were unhappy with the level of supported provided by the Council. The Council told the Ombudsman it is seeking legal advice because Mr X and Ms Y have refused to engage with the care planning process any further. Once it has a response it will make both parties an offer of support but acknowledges it should have done this sooner.
- The Council is correct when it states it is entitled to complete regular reviews of Mr X and Ms Y’s needs. Just because the 2013 assessment decided Mr X and Ms Y needed a certain amount of care to meet their needs, it does not mean that level is guaranteed. Each year the Council must complete a new assessment and consider the circumstances at the time and I have not seen any evidence of the Council agreeing to delete a previous assessment. Ms Z says the promise to delete the 2013 assessment was made verbally but without clear independent evidence I cannot say if that happened given the time that has passed. However, if the Council makes a change to a care package it should be able to demonstrate how it has made that decision and how the new care package meets their needs.
- I have not seen any evidence that the Council relied on an old assessment or that the decision was pre-determined. The Council completed a new home visit and took account of relevant information from Mr X, Ms Y, their advocate, the care provider and Business A and then came to a view. However, it was clear from the outset that Mr X and Ms Y’s needs and care packages were intrinsically linked. The Council states that it intended to complete a carer assessment on Ms Y but could not complete it because Ms Y stopped engaging. But, acknowledged it should have attempted to complete it sooner.
- The Council completed an assessment on Mr X in September 2016. But it did not allocate Ms Y a social worker until over a month later and then did not complete her assessment until March 2017. I appreciate some of this delay was due to requests by Ms Y, but the Council should have given Mr X and Ms Y the option of a combined assessment.
- Had the Council done this, it would have been able to consider both their needs and impact of caring responsibilities at the same time. It is likely this would have made it clearer to Mr X, Ms Y and the care provider what the allocated hours should be used for and how the Council reached its decision. But I am unable to conclude with any certainty that a combined assessment would have resulted in a different outcome. This is because when the Council assessed Mr X and Ms Y separately it took account of relevant information and each assessment considered the other’s care needs. In any event, the Council has not yet reduced the care package so Mr X and Ms Y have not lost out on any care while their complaint is being resolved.
- Where there is no evidence of fault in the decision-making process, the Ombudsman will not challenge the professional judgement of the Council. However, failure to complete a combined assessment has resulted in a lack of clarity for all parties and is likely to have added to Mr X and Ms Y’s frustration. It is possible that had the Council completed a combined assessment they would not have refused to engage in the care planning process.
- The complainants state the assessments contain factually incorrect information. But I am satisfied that Mr X and Ms Y have had the opportunity to comment on the assessments and these comments have been incorporated into the assessments. Where there is a disagreement in facts, there is no duty on the Council to remove its original analysis but it should also reflect Mr X and Ms Y’s comments; which it has done.
- After reviewing the care records from the Council, Business A and the care provider I am satisfied that Mr X and Ms Y’s care needs were being met despite the dispute over how many hours they should receive. The Council did not reduce the hours and provided suitable alternatives – such as different care agencies and offer of a managed account - when Mr X and Ms Y raised concerns. Mr X and Ms Y did not agree to any alternatives. Therefore, the Council cannot be held accountable for any service provision issues. The Council also ensured that Mr X and Ms Y had cover from a care agency while their PA’s were on sick leave. The Council was not required to ensure they had temporary PA’s if it was satisfied their needs were being met by the care agency; which it was. Mr X and Ms Y also had the responsibility of dealing with the legality of their PA’s being off work sick and recruiting a new PA; not the Council.
- In recognition for the faults identified above, by 11 February 2019 the Council should:
- Offer Mr X and Ms Y a combined assessment. If Mr X and Ms Y agree, it should complete the assessment within four weeks of that agreement.
- Apologise to Mr X and Ms Y for failing to complete a combined assessment and any distress, frustration and confusion this has caused them.
- There is no evidence that the Council failed to ensure Mr X and Ms Y’s care needs were being met. A care agency was put in place to manage sickness from their personal assistants and it offered to move them onto a managed account. But the Council should have completed a combined assessment as their needs were intrinsically linked. Although we cannot say the outcome of the assessment would have been different, it could have made the Council’s decision to reduce their care package clearer.
Investigator's decision on behalf of the Ombudsman