Summary: The Ombudsmen found fault by the Trust as it delayed in arranging for the complainant’s social care needs to be assessed and did not refer her to the primary care mental health service. The Trust agreed to apologise to the complainant and pay her a financial remedy in recognition of the distress this caused. The Ombudsmen are satisfied the social care assessments the Council eventually carried out were appropriate and in keeping with the requirements of the Care Act 2014.

The complaint

1. The complainant, who I will call Ms J, is complaining about the care and support provided to her by the Council and Trust. Ms J complains that:

• The Trust and Council failed to properly assess her mental health and social care needs following her discharge from secondary mental health services in October 2016. Ms J says she received no contact from the Trust or Council until she involved her MP.
• The Council failed to put Direct Payments in place between October 2016 and April 2018, even though a clinician felt this would be beneficial for her wellbeing.

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The Ombudsmen’s role and powers

2. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship
3. If the Ombudsmen find evidence of fault causing injustice, they may suggest a remedy. Recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1)).
4. The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way the Council and Trust made their decisions.
5. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. In reaching this draft view, I considered information provided by Ms J and discussed the case with her. I also considered information provided by the Council and Trust, including the case records.
7. In addition, I took account of relevant law, statutory guidance, and local policy.
8. I invited comments from Ms J, the Trust and the Council on my draft decision and considered what they said before making my final decision.

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What I found

Relevant legislation and guidance

Social care assessment

9. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
10. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process.

Eligibility for social care services

11. The eligibility threshold for adults with care and support needs is set out in the Care and Support (Eligibility Criteria) Regulations 2014. 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.
12. Where councils have determined that a person has any eligible needs, they must meet those needs. When the eligibility determination has been made, councils must provide the person to whom the determination relates (the adult or carer) with a copy of their decision.

Direct Payments

13. Direct Payments are payments made to service users by local authorities. They are intended to give service users choice and control over the care and support they receive. The payments must be sufficient to enable the service user to purchase community care services to meet their eligible needs. The payments must be spent on services that meet eligible needs.

Key facts

14. Ms J has diagnoses of schizoaffective disorder, personality disorder and anxiety disorder. By 2016, she had been under the care of the Trust for several years. In addition, from 2011, Ms J had been in receipt of Direct Payments to meet her assessed social care needs.
15. In October 2016, a consultant psychiatrist discharged Ms J from secondary mental health services following an outpatient review.
16. Between February and April 2017, Ms J contacted the Trust several times to request a Direct Payment.
17. The Trust undertook a social care assessment in May 2017. The assessment found Ms J did have eligible social care needs, but that these could be met by her family and services within the community. As a result, the Trust declined to offer Ms J a Direct Payment.
18. Ms J subsequently challenged the Trust’s decision via her solicitor.
19. In January 2018, the Trust undertook a mental health assessment to determine whether Ms J required support from secondary mental health services. It was agreed a further social care review would also be undertaken to consider Ms J’s eligibility for social services.
20. This review took place in April 2018, with a further review in May 2018. The reviews found Ms J did not meet the threshold for social care support. However, the Trust made a discretionary Direct Payment to Ms J in June 2018 so she could purchase gym membership and attend a course.

Analysis

Discharge

21. In October 2016, a consultant psychiatrist discharged Ms J from the Trust’s secondary mental health services. He noted that she had “made remarkable achievements in her personal life and mental health.” On this basis, the psychiatrist noted “we agreed it was better to have fewer people involved in her care. She is happy to consult between her GP and [an out of hours mental health service], and I will refer to the primary care mental health nurse…who can hold her on her case load for the next 6 months.” The psychiatrist concluded that he “will however remain accessible to her at her (or her GP’s) request”.
22. I found no evidence to suggest the Trust made this referral to the primary care mental health nurse. This is fault by the Trust.
23. By the point of her discharge in October 2016, Ms J had been in receipt of Direct Payments to meet her eligible social care needs for several years. Despite this, I found no evidence to suggest the Trust arranged for Ms J’s social care needs to be assessed prior to her discharge. Again, this is fault by the Trust.
24. I am not persuaded this had a significant impact on Ms J in terms of her mental health care. This consultant’s discharge report made clear Ms J’s mental health was stable at the point of discharge. In addition, Ms J was able to access psychological support from the local mental health charity if required. She was also free to seek a referral back to the Trust’s secondary mental health service if necessary.
25. Nevertheless, Ms J had been given an expectation that she would be referred to the primary care mental health nurse for support. The Trust’s failure to make this referral caused Ms J unnecessary anxiety and confusion.
26. Furthermore, it was not until May 2017, following repeated contact from Ms J, that the Trust arranged for a social care assessment to be undertaken. This was a delay of almost seven months from the point of Ms J’s discharge from services.
27. There is no evidence to suggest Ms J missed out on social care support during this time. This is because, when the assessment was eventually completed in May 2017, it found Ms J’s needs could be met within the community and that she was not eligible for a Direct Payment at that time.
28. However, I accept the delay caused Ms J avoidable uncertainty and distress.

Assessments

29. At the time of the events Ms J is complaining about, the Trust provided social care services to service users with mental health needs on behalf of the Council. However, the Council retained ultimate statutory responsibility for the provision of social care services in accordance with the Care Act 2014. On this basis, my findings on the social care services provided to Ms J are against the Council as it was accountable for the actions of the Trust.
30. The assessment of May 2017 included a comprehensive care history for Ms J, as well as a detailed consideration of her social care needs against the Care and Support (Eligibility Criteria) Regulations 2014. The assessment found Ms J required support to develop and maintain relationships. It also found Ms J was unable to access work or education without support. The assessment concluded Ms J did have eligible social care needs and required access to structured activities to prevent her becoming isolated.
31. The assessment noted Ms J received regular support from her mother with daily activities such as shopping, cooking and washing. The assessment found that local charitable services could provide Ms J with structured activities and that her needs could therefore be met without a Direct Payment.
32. There does appear to have been some confusion around the level of support Ms J’s mother was able to provide. The assessment noted Ms J “sees her Mum regularly on a daily basis”. However, Ms J informed me her mother lives abroad.
33. It is unclear how this confusion developed. Nevertheless, I do not consider this significantly affected the outcome of the assessment. It is important to note that Ms J was able to carry out activities of daily living such as shopping and cooking without assistance, although she sometimes needed encouragement. In my view, Ms J’s mother was able to provide this emotional support and encouragement.
34. Ms J said she could not access the charitable services suggested by the Council as these were group activities and were not suitable for her. However, the Council clarified that the charity also provides one-to-one employment and education support.
35. The Ombudsmen cannot decide what support a person should receive. This is a matter of judgement for the professionals involved. The assessment is thorough and appears to have been in keeping with the requirements of the Care Act 2014. It also identified appropriate support for Ms J in the community to enable her to access education and work. I find no fault by the Council in this regard, albeit I understand Ms J was dissatisfied with the outcome of the assessment.
36. Ms J’s subsequently challenged the Council’s decision via her solicitor. Ms J said she was unable to access community services as these were structured around group work and this was unsuitable for her diagnosis. In November 2017, Ms J’s solicitor requested a review of her mental health and social care needs.
37. In early December 2017, the Trust wrote to Ms J’s solicitor to explain that it would arrange a review as requested. This took place in January 2018.
38. The assessment was undertaken by two mental health nurses. The Trust says this was intended as an initial assessment to consider whether mental health services would be able to meet Miss J’s needs.
39. The records show the assessors took a further detailed history. The assessment also noted information provided by Ms J about changes in her circumstances. This included the fact that Ms J’s mother had by this time moved abroad. The assessors noted they would discuss Ms J’s care within the team to decide how to proceed.
40. This led to further reviews by a social care professional in April and May 2018. These reviews found Ms J did not meet the eligibility criteria for social care support. However, the reviewer recognised the difficulties Ms J experienced accessing facilities within the community could potentially lead to her becoming isolated. He concluded this could result in a deterioration in her long-term mental health. The reviewer arranged for Ms J to have a discretionary Direct Payment to allow her to purchase gym membership and attend an educational course. These reviews were robust and in keeping with the requirements of the Care Act 2014. I find no fault by the Council in this regard.
41. However, it is unclear why the Trust did not seek input from a social care professional at the assessment in January 2018, particularly given Ms J had requested a review of both her mental health and social care needs. In my view, this omission led to unnecessary delays as it was a further four months before the social care review could be completed (in May 2018). This is fault by the Trust and meant Ms J did not receive her Direct Payment until June 2018.
42. In summary, I am satisfied the social care assessments and reviews undertaken by the Trust on behalf of the Council in May 2017, April 2018 and May 2018 were robust and in keeping with the requirements of the Care Act 2014.
43. However, I found fault by the Trust with regards to its failure to arrange a social care assessment for Ms J prior to her discharge from secondary mental health services in October 2016. I also found fault with the Trust’s failure to seek input from a social care professional as part of the assessment undertaken in January 2018.

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Agreed actions

44. Within one month of my final decision statement, the Trust will:

• Write to Ms J to apologise for its failure to arrange timely assessments of her social care needs and the avoidable distress and anxiety this caused to her.
• If it has not already done so, refer Ms J to the primary care mental health service.
• Pay Ms J £200 in recognition of the impact on Ms J of the fault I have identified.

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Final decision

45. I found fault by the Trust for the reasons I have explained above. In my view, the actions the Trust has agreed to undertake represent a reasonable and proportionate remedy for the injustice Ms J suffered as a result of this fault.
46. I found no fault by the Council in respect of Ms J’s social care assessments.
47. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman