Decision : Upheld
Decision date : 01 Aug 2019
The Ombudsman's final decision:
Summary: Mr X complains about the Council’s delay of several months completing an assessment and says the assessment was inaccurate. He says this has affected his health conditions. The Ombudsman finds the Council was at fault and recommends it apologises and pays Mr X £800. The Council has already taken action to prevent similar faults in future.
- The complainant, whom I shall refer to as Mr X, complains that the Council:
- delayed responding to his request for an assessment for several months.
- delayed giving him a copy of an assessment because Mr X had not provided a copy of his direct payments statement.
- provided an unqualified officer to carry out the assessment.
- completed an inaccurate assessment.
- did not respond appropriately to Mr X’s complaint about these issues.
The Ombudsman’s role and powers
- 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 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)
- In this case, Mr X was complaining to the Council until he brought his complaint to us so we have exercised discretion to look at events back to 2015.
- The Ombudsman’s Guidance on good practice: Remedies says:
- “Where the complainant claims injury or harm to health as the main injustice, this is usually for the courts to decide. But sometimes it is appropriate to acknowledge the impact of the fault has included harm, or risk of harm. Such harm, or risk of harm, can arise when the complainant, because of fault by the body in jurisdiction, did not receive services intended to provide protection”.
- “Where fault by the body in jurisdiction exposed a complainant to the risk of harm (rather than actual harm), a remedy payment of up to £500 will usually be an appropriate acknowledgement of the impact of the fault. Where the risk was significant, or harm actually occurred, a remedy payment of up to £1,500 may be recommended to acknowledge this. Exceptionally, if there was significant actual harm over a prolonged period, we may recommend more”.
How I considered this complaint
- I considered information from the complainant and from the Council.
- I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.
What I found
- The Care Act 2014 (the Act) came into force in April 2015. It sets out local authorities’ duties around adult social care. The Care and Support statutory guidance sets out how the Act should be applied.
Assessment, eligibility, and support planning
- Sections 9 and 10 of the Care Act 2014 (the Act) say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person’s finances.
- The statutory guidance says a council must consider “the total extent of a person’s needs” before it considers the person’s eligibility for care and support and what types of care and support can help to meet those needs. This must be “regardless of any support being provided by a carer”. The assessment must include “looking at the impact of the adult’s needs on their wellbeing and whether meeting those needs will help the adult achieve their desired outcomes”. Councils must give people a record of their needs assessment.
- The statutory guidance says:
- local authorities “should take a holistic approach” to considering the needs to be met. They should make “comprehensive provisions” to accommodate fluctuating needs, and detail contingencies for sudden changes or emergencies.
- “Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment”.
- “The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life”.
- The adult’s needs are due to a physical or mental impairment or illness.
- The adult’s needs mean they cannot achieve one or more specified outcomes.
- As a consequence of being unable to achieve one or more of the ten specified outcomes there is, or is likely to be, a significant impact on the adult’s wellbeing.
- maintaining nutrition,
- maintaining personal hygiene,
- using the home safely,
- maintaining a habitable home,
- developing and maintaining personal relationships, and
- making use of facilities or services in the community.
- The guidance says: “being unable to achieve these outcomes” includes being able to achieve them with assistance or achieving them without assistance but where “it takes significantly longer than would normally be expected”.
- When a council decides someone has eligible needs, it must produce a care and support plan explaining how to meet them. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support is available locally.
- Councils should conduct a review of a care and support plan at least every 12 months. As well as the duty to keep plans under review generally, the Act puts a duty on councils to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
- Where a council is meeting some needs, but not others, the care and support plan should clearly set out which needs it will meet and which ones it will not. It should explain this decision. The council should give the person a personal budget to meet the eligible needs identified in the care and support plan. The council must ensure eligible needs are met but it does not have to provide services directly. The personal budget must always be an amount enough to meet the person’s care and support needs. The detail of how the person will use their personal budget will be in the care and support plan.
- The Act also places a duty of promoting individual wellbeing on local authorities. It sets out nine areas of wellbeing as:
- Social and economic wellbeing
- Personal dignity
- Physical, mental and emotional health
- Protection from abuse and neglect
- Domestic, family and personal relationships
- Personal control
- Individual contribution to society
- Suitability of living arrangements
- Work, education, training and recreation.
- carry out assessments to the “highest quality”;
- assume the individual is best placed to judge their wellbeing;
- focus on the person’s needs and outcomes they want to achieve;
- consider how to prevent needs developing or escalating at every interaction with a person;
- take a person centred approach to assessment and balance the person’s own view with that of others;
- “prevention and early intervention are placed at the heart of the care and support system”;
- offer supported self assessments if the person is willing and able. The person should be in control and should complete the assessment; and
- complete a person centred and person-led care and support plan and provide a copy to the person. It must support the person to write their own care and support plan and ensure the principles of promoting wellbeing and preventing or delaying the development of needs is reflected in the plan.
Strengths based approach
- The Council has adopted a strengths-based approach to practice. The Department of Health and Social Care’s “Strengths-based approach: Practice Framework and Practice Handbook” states:
- “Strengths-based practice is holistic and multidisciplinary”. It “explores, in a collaborative way the entire individual’s abilities and their circumstances”.
- “The concept of wellbeing in the Care Act is broader than the areas covered by the ‘eligibility outcomes’, hence why all interventions – care and support functions – should address the nine areas of the individual wellbeing and not the nine or ten areas within the eligibility outcomes.
- “The role of the professional is not solely to ‘reduce risks’ but to support the individual in managing risks. This can be done by:
- Identifying all the potential benefits and potential risks of a particular activity or decision for the individual and others,
- Exploring and fully understanding the consequences of both the potential benefits and the potential risks for them and others
- Collaboratively, identifying the best way to manage the identified risks, maximizing the benefits and if appropriate reducing the potential negative consequences.”
- Mr X has health conditions and disabilities which significantly impact on his ability to carry out daily living activities. From 2014, Mr X received a direct payment.
- In May 2015, the Council carried out a review and increased Mr X’s direct payment from 5.5 hours to 8 hours per week.
- In 2016, the Council continued paying the direct payment but did not review Mr X’s care plan.
- In March 2017, the community mental health team (CMHT) contacted the Council because it had received a referral for Mr X and wanted to know if adult social care was involved with him. The Council said he was on the list for a review. It said he did not have an allocated worker and it could not say when this would happen. Mr X’s sight deteriorated further; he could no longer see to administer his injections; the Council says it did not know this.
- In April 2017, Mr X went into hospital for an operation. Council records note concerns about his health. Mr X’s carer (Ms Z) advised the mental health crisis team had been involved and may be again.
- The Council contacted Ms Z to say that he had not sent the evidence needed for his direct payment. It noted she was unhappy that she had to explain everything again. Mr X did not have an allocated worker so each time Ms Z contacted the Council, she had to speak to a different duty worker. The Council says it booked a review for 19 April but this was rescheduled because Mr X was in hospital.
- On 21 April, the Council carried out a telephone review. It spoke to Mr X about the support he received and his health conditions. These notes included that Mr X:
- had night time seizures;
- had a medical condition causing problems with glucose levels;
- had an eye condition requiring injections in his eye;
- may have another toe amputated;
- had breathing problems; and
- was at risk of a heart attack.
The worker agreed for eight hours support to remain in place.
- The Council also spoke to Ms Z about the evidence of expenditure for the direct payment. She said she would support him with it, but he was not well currently due to his mental health.
- In June, Ms Z could not get hold of the person she had spoken to previously about the evidence of expenditure. She emailed and telephoned the Council and was told it had let the person know, but Ms Z heard nothing.
- On 18 October, Ms Z emailed the Council because Mr X had received another letter about the direct payments. She said he had now almost totally lost his sight so would someone contact her to “take this forward”. She said he also needed to discuss the change in his needs and what was available to him; he needed an increase in his direct payment. The officer dealing with the email sent an email to a colleague, she said Mr X was now registered severely sight impaired (blind) and Ms Z had said the outstanding direct payments paperwork would have to wait. The Council says this is the first it knew about Mr X’s sight loss.
- On 19 October, the Council replied asking for more information about why Mr X needed reassessment. On 25 October, the Council said it had arranged for an urgent review. It also asked for evidence of direct payment expenditure. It said if Mr X did not provide the evidence, it would invoice him for all the money it had paid him so far.
- Mr X said he had emailed statements in the past but the Council said it had no record of this. Mr X also says the Council said there was a problem with the Council’s email system but the Council says this is incorrect. Mr X became unwell so the Council agreed to give him more time to send the information. Council records show that Council officers said Mr X needed an urgent review as the direct payment paperwork had been outstanding since 2015.
- In November 2017, the local eye clinic contacted the rehabilitation officer for sight loss (ROVI) who arranged an assessment. A home visit by a sensory loss worker and an adult social care worker (ASCW) was planned for 14 December. This was two months (41 working days) after it heard about Mr X’s sight loss and his request for an assessment.
- During December, Mr X received visits from a ROVI, who provided a mobility assessment and training.
- In January 2018, when considering Mr X’s failure to provide the evidence requested, the Council noted that his review was overdue and suggested the social worker could look at the direct payments problems and complete a review.
- The sensory loss worker and an ASCW visited Mr X. He told them he had difficulty with the lighting in the hallway. They suggested improvements to the lighting in the living room but said the lighting in the hall was adequate for his needs. Mr X said there was nothing else and asked them to leave.
- Mr X spoke to the ROVI and told him he did not want the sensory loss worker to visit again. He felt the visit had been negative and unhelpful and she had not understood his need for extra lighting. The ROVI arranged for a visit from an occupational therapist (OT) and someone from the local council housing department to assess the lighting issues raised by Mr X. They found the lighting in the living room was not adequate made recommendations. They also found Mr X was unable to see who was at the door, because the lighting was poor in the hall. They recommended lighting to illuminate the door area. The local council agreed to complete the recommended lighting changes.
- The ROVI visited again but Mr X was not well enough to do outdoor mobility training. He agreed to contact the ROVI if he felt well enough for further support.
- On 3 March 2018, over four months since Mr X asked for an assessment, an ASCW visited Mr X and completed an assessment. It noted Mr X’s views around not wanting telecare equipment, help with his personal hygiene, or professional input around his seizures and mental health condition. The section “What would you like to achieve” does not mention anything he wanted to achieve though there is a mention elsewhere that Mr X could not prepare food and drinks independently following a seizure and would like help with this. Also, that he no longer felt safe going out alone and needed someone to help him.
- The section “What are your concerns and risks to your independence?” mentions only a risk of isolation though other risks are evident from other information such as risks to nutrition and keeping safe. The assessment also included existing support but did not look at the detail of the support, or if supporters were willing and able to continue. The assessment does not consider the areas of wellbeing as set out in the strengths-based approach handbook. It lists the Care Act eligibility outcomes followed by a statement about Mr X’s needs. For example: “Maintaining a habitable home environment”. “Due to his sight impairment [Mr X] is unable to maintain the environment of his home which is important to prevent trips/fall and ensure good hygiene levels are maintained”. “Support with this could be privately funded”. However, it does not consider eligibility using the Care Act eligibility criteria. The ASCW noted she would speak to the housing OT about Mr X’s request to move. The Council did not provide Mr X with a copy of this assessment.
- There is no set time by which Councils must carry out an assessment. The Care Act 2014 does not allow a council to defer or delay an assessment because of resource pressure. The Ombudsman’s factsheet “Councils that conduct community care assessments” says “the Ombudsman normally considers that it is reasonable for this to take between four and six weeks from the date of the initial request”.
- In April 2018, the Council asked the housing OT to visit Mr X to look at his housing needs as he was becoming increasingly isolated.
- In May, the OT visited Mr X to discuss his housing needs. Mr X emailed the Council saying he was concerned his needs had not been fully discussed because of time constraints. Ms Z advised the Council that Mr X had ordered statements from internet banking and they would be available in about 7-10 days.
- In July, Ms Z asked the Council for a copy of the assessment completed in March. The Council did not send this because it was “still awaiting bank statements promised in May” to evidence his direct payment expenditure. Ms Z emailed the following day stating that the statements attached had previously been sent from Mr X’s email. Also, that he was not impressed at being “held hostage” for information already provided.
- On 24 July 2018, Mr X complained and said he wanted the results of the assessment he had in March. The Council called Mr X three days later, and said it would review the assessment, and send Mr X a copy the following week. Mr X asked about the assessment being withheld and the Council confirmed it would discuss with the worker concerned to ensure correct processes were followed. The Council confirmed it had received the direct payments information.
- On 2 August, an OT completed an assessment around showering and arranged a shower seat for Mr X.
- On 7 August, Mr X called the Council as he had not received anything. Due to staff sickness, it had not sent the assessment to Mr X. An officer was tasked with making sure this was completed and sent to Mr X by 10 August.
- The Council delivered a copy of the assessment to Mr X by hand as part of its response to his complaint. Its letter did not set out the complaint but apologised that it exceeded the required timescale by two days. The Council had taken five months to give Mr X a copy of his assessment.
- Mr X requested an urgent reassessment by a qualified social worker; he wanted his night time needs included and said the assessment was inadequate without.
- Mr X complained to the Ombudsman and said he was still waiting for a reassessment since he requested one on 19 October 2017.
- On 5 September, Mr X’s case was allocated to a social worker.
- On 13 September, a social worker and an ASCW visited to assess Mr X’s needs. This assessment also did not consider the nine wellbeing areas set out in the strengths-based approach handbook. It set out some of the eligibility outcomes and made more detailed observations about Mr X’s needs under these headings than in the March assessment. It noted that Mr X:
- had seizures causing wandering at night and a limited awareness of his actions and risks around the home, also a risk of leaving the home.
- experienced incidents of pain, strain and discomfort affecting his range of movement and ability to lift and carry.
- required “incidental support” to change bedding.
- required physical support to lift and carry laundry following a seizure.
- was supported by several family members and friends.
- recognised that he would benefit from moving to be closer to family which would facilitate him to have access to incidental unpaid/natural support network.
- may require incidental support to assist with incidental breaks and spillages within the home.
- required support to access all printed information.
- required targeted support to attend health appointments further afield.
- required incidental support with personal care and managing health condition following seizures.
- was at risk of social isolation.
- could not prepare food and drinks independently following a seizure.
- Meeting incidental nutritional needs
- Managing and maintaining incidental personal hygiene needs.
- Managing incidental toileting needs.
- Managing incidental risk within the home.
- Incidental support in relation to being appropriately clothed.
- Accessing targeted community services and resources.
- Maintaining a habitable home
- Managing identified health needs
- Accessing support within community resources
- Specialist voluntary agencies
Was there fault which caused injustice?
- It is not the Ombudsman’s role to decide if a person has social care needs, or if they are entitled to receive services from the Council. The Ombudsman’s role is to establish if the Council assessed a person’s needs properly and acted in accordance with the law. In this case, the Council failed to do so.
- The Council should have carried out a review at least every 12 months. Mr X was due a review in May 2016. The purpose of the annual review is to ensure the Council is still meeting any eligible needs appropriately. It did not complete a review until 21 April 2017 when it completed a telephone review. So, for almost one year, it did not know whether the support it provided was still meeting Mr X’s eligible needs. This was fault.
- When Mr X asked for an assessment in October 2017, because he had lost his sight, the Council did not complete an assessment of his needs until March 2018. This was over four months later which, given the Care Act’s focus on prevention and early intervention, is too long. This was fault. It was the local eye clinic that arranged an assessment by a ROVI. The ROVI assessment was a specialist assessment relating to sight loss; it was good that he had this, but it was not to assess his wider social care needs.
- When it did assess Mr X’s social care needs in March 2018, the assessment did not consider Mr X’s needs before any support he received. It did not consider the areas of wellbeing or consider eligibility, and it did not consider how to prevent needs arising or deteriorating. The assessment did not mention the outcomes Mr X wanted to achieve. It was not to the “highest quality”. The Council did not share the outcome with Mr X for five months. The assessment could not be considered complete when Mr X had not had the opportunity to see it. It should have reflected his views. He should have been at the centre of both the assessment, and the decisions about care and support, but he was not. When he did see it he complained. The Council was at fault here.
- The Council accepts that its assessments have not always covered the wellbeing aspect of the Care Act 2014. It has advised that it has changed its process to address this.
- Between the review in May 2015, and the assessment in March 2018, the Council became aware that Mr X:
- had problems related to his mental health and was involved with the community mental health team;
- had been in hospital twice and there were concerns about his health;
- was too unwell to complete several sessions of mobility training;
- was becoming increasingly isolated and needed to move to another property;
- required a second bedroom for carers to stay overnight;
- had lost his sight.
- maintaining a habitable home
- managing identified health needs
- accessing support within community resources
- specialist voluntary agencies.
- To remedy the injustice identified above, I recommended the Council:
- Apologise to Mr X, detailing the faults above and actions it has taken, or will take to put these right.
- Pay Mr X £800 for the distress, risk of harm and loss of service it caused.
- I have completed my investigation and uphold Mr X’s complaints that the Council:
- delayed responding to his request for an assessment for several months.
- delayed giving him a copy of the assessment because Mr X had not provided a copy of his direct payments statement.
- completed an inaccurate assessment.
- did not respond appropriately to Mr X’s complaint about these issues.
Investigator's decision on behalf of the Ombudsman