Summary: The Council is at fault as it did not instruct an independent social worker to consider if Mrs X had unmet need from March 2016 when carrying out an independent assessment of her care and support needs following a previous complaint to the Ombudsman. This fault caused uncertainty to Mr and Mrs X which the Council should remedy. There is no evidence of fault in the Council’s decision not to backdate Mrs X’s increased care package to March 2016.

The complaint

1. Mr and Mrs X complain about the Council’s decision that an independent assessment of Mrs X’s care needs did not identify historical care needs so it could not identify if Mrs X had unmet needs from March 2016 and award a remedy.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I have:
• Considered the complaint and the information provided by Mr and Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mr and Mrs X and the Council to comment on the draft decision.

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What I found

5. Mrs X has complex physical and mental health needs. In June 2016 the Council provided a care package including three hours of personal care per day and four hours per week for social activities. The care package was provided by direct payments.
6. Mr and Mrs X made a complaint to the Ombudsman about how it had assessed Mrs X’s care and support needs and the adequacy of the care package. We found the Council to be at fault as it did not properly identify Mrs X’s care needs and whether those needs were eligible for support when it carried out an assessment in March 2016. The Council offered to arrange an independent assessment of Mrs X’s care and support needs. It also agreed to our other recommendations including that the Council:

‘Considers offering an appropriate remedy if the independent assessment identifies Mrs X had eligible care needs from March 2016 and those care needs warrant a greater care package than provided from June 2016.’

7. The Council arranged for Mr A, an independent social worker to carry out an assessment of Mrs X’s care and support needs. Mr and Mrs X requested that Mr A did not access Mrs X’s historical care and support records for the assessment.
8. Mr X carried out the assessment. He made a number of recommendations including an increase in Mrs X’s care package from three to five hours of care per day and respite care for one week in eight.
9. The Council appointed Ms B, an independent social worker, to draw up a care and support plan with Mr and Mrs X as Mr A had left the area. The care and support plan included Mr A’s recommendations for a care package of five hours per day for personal care, six hours per week for social support and one week in eight for respite care.
10. The Council notified Mr and Mrs X of the increased care package. It also notified Mr and Mrs X that Mr A’s assessment did not identify Mrs X’s care needs were greater than assessed in March 2016 so it would not backdate the increased care package to March 2016.
11. Mr X made a complaint to the Ombudsman about the Council’s decision that it would not backdate the increased care package to March 2016.
12. Mr X has provided an email from Mr A which states he was asked to do an assessment of Mrs X’s needs, not a review. So, his assessment could not be backdated and could only start from the day he assessed Mrs X's needs.
13. In response to my enquiries the Council has said Mr A’s assessment did not identify any new needs not previously identified in Mrs X’s earlier assessment and it does not have any tangible evidence of Mrs X’s historic needs. There are no records of nature or quantity of support provided by Mrs X’s personal assistants nor any evidence to indicate why the previous care package was not sufficient. The Council does not have sufficient evidence to show how the direct payment account is used and the activities of Mrs X’s personal assistant and family members in providing care to her.
14. Mr and Mrs X have said they provided the same information to Mr A as they had previously provided to the Council for her earlier assessments. They have also said Mrs X’s needs have not changed since 2016 and Mrs X’s family have provided support to her while waiting for an adequate care package.

My assessment

15. The Council declined to backdate the increased care package as Mr A’s assessment did not identify that Mrs X’s care needs were greater in March 2016 than previously assessed. The Council cannot evidence its instructions to Mr A as they were provided verbally. But Mr A’s email to Mr X is evidence the Council did not ask him to consider if Mrs X had unmet needs from March 2016. In view of my recommendation, the Council should have asked Mr A to consider if it was likely Mrs X had unmet need from March 2016. Its failure to do so is fault.
16. I cannot say, on balance, that Mr A would have identified Mrs X had unmet needs from March 2016 and the Council would have backdated Mrs X’s increased care package to that date. I am mindful of Mr and Mrs X’s position that Mrs X’s needs have not changed since March 2016. I have also considered the information Mr and Mrs X have provided in response to my draft decision about why the care package was insufficient. The key point here is that Mr and Mrs X have not satisfactorily shown how they have used the direct payments they have received. The Council considers the lack of information on this point undermines Mr and Mrs X’s argument that there were greater needs as they have not accounted for the payments they received. I accept the Council’s position here. The lack of explanation as to the use of the existing direct payments undermines Mr and Mrs X’s argument that Mrs X had more needs which were not being met. So, I consider there is no basis to say that the increase in the care package following the independent assessment should be backdated to March 2016.
17. But the Council’s failure to advise Mr A to consider if Mrs X had unmet need from March 2016 has caused some uncertainty to Mr and Mrs X. The Council should remedy this injustice.

Agreed action

18. That the Council sends a written apology and makes a payment of £150 to Mr and Mrs X to acknowledge the uncertainty caused by the Council’s failure to instruct Mr A to consider if Mrs X had unmet need from March 2016. The Council should take this action within one month of my final decision.

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Final decision

19. The Council is at fault as it did not instruct an independent social worker to consider if Mrs X had unmet need from March 2016 when carrying out an independent assessment of her care and support needs following a previous complaint to the Ombudsman. This fault caused uncertainty to Mr and Mrs X which the Council has agreed to remedy. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman