Summary: Mr X complained about the Council’s assessment and care planning. There was fault by the Council in not sharing its assessment promptly with him, and with some aspects of its investigation into his complaint. These faults caused Mr X avoidable frustration and distress. The Council has agreed to apologise and to review its practice to avoid reoccurrence of these faults. There is no evidence of fault in how the Council has come to its decisions regarding Mr X’s care needs.

The complaint

1. Mr X complained there was fault in the Council’s assessment and care planning concerning his care over a 12 month period. He says this resulted in an inadequate support plan, cutting his support so it does not meet his needs.
2. Mr X complains the Council’s investigation of his complaint was inadequate, did not meet deadlines or keep him or his representative updated.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke to Mr X’s advocate and considered information Mr X provided about his complaint.
7. I asked the Council questions and considered its assessments of Mr X and responses to his complaint.
8. I considered the Care Act 2014 and associated Statutory Guidance.
9. I gave the Council, Mr X and his representative the opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

10. Councils must assess adults who appear to have care and support needs. The assessment must be of the person’s needs and how they impact on their wellbeing and the results they want to achieve. It must involve the individual and where suitable their carer or any other person they might want involved.
11. The council must carry out the assessment over a suitable and reasonable timescale, considering the urgency of needs and any variation in them. The council should keep the person informed throughout the assessment.
12. The council must write a care and support plan considering what needs the person has, what they want to achieve, what they can do by themselves and what care and support may be available locally. The council must involve any carer the adult has in this planning. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary eligible care and support for that person.
13. Councils can decide to pay the person’s personal budget through direct payments. Care and Support (Direct Payments) Regulations say direct payments cannot be used to pay for care from a husband or wife of the adult, except where the council decides this is necessary to meet the adult’s care needs. Statutory guidance gives an example of a child who has severe problems trusting people. A council might then decide the child’s parents should be paid to be his carers. This decision is based on the council’s assessment of the adult, and of the carer.
14. Councils should keep care needs under review and review care plans at least annually. Councils should not use reviews to reduce a care and support package without proper consideration of the person’s circumstances. Reviews should look at whether circumstances or needs have changed, what is working or not working and whether outcomes have been achieved. They should check whether the personal budget allows the person to meet their needs.
15. Where someone provides or intends to provide care for another adult and it appears they may have support needs, councils must offer to carry out a carer’s assessment. This must consider the support needs of the person providing care and whether they are able to keep providing this care. The council may then meet the carer’s needs as explained in a support plan.
16. Care Act Statutory Guidance states that “the local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where this is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond adequately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing”.
17. The Council about which Mr X complains has a policy to acknowledge complaints within three days and try to resolve them in twenty working days. If it decides it will take longer, the Council says it will let the person know. The Council says it will keep the person informed of the progress of their complaint.

Background

18. Mr X has a progressive, permanent physical health condition meaning he needs help with aspects of daily life. The Council has funded Mr X’s care package through direct payments for several years. This was intended to pay for his care at home through a care agency. Before the period covered by this complaint, Mr X’s care package is reported to have at first been for 21 then for 35 hours care per week. This agreed care package dated from 2012-2013. Mr X says it included four hours per week exercise for core strength and, since 2016 had allowed him to use direct payments to pay his wife as personal assistant.
19. The Council has no records of its assessments or care plans from this period as it has moved electronic care records since then and not kept earlier ones. Mr X says the Council knew he was using direct payments to pay for his wife since then.
20. In March 2017, five years after its last review, the Council decided to review Mr X’s care needs. During the assessment the Council found Mr X was using direct payments to employ his wife as a personal assistant. The assessment noted the Council needed to review this.
21. Following this assessment, the Council revised the care package. The new care plan identified that Mr X needed a personal budget to pay for 18.5 hours per week of home care plus one “wake and watch sleep in” per week to give Mr X’s wife a break from providing overnight care.
22. Mr X complained to the Council about its decision, and about the adequacy of the assessment that resulted in the care plan. He complained the Council had decided he could not use direct payments to pay for his wife’s night time care. The Council did not respond to the detail of his complaint. It offered to carry out a new assessment of Mr X’s care needs. This would be by different members of staff to those that had done the first assessment.
23. Mr X agreed to be reassessed but asked that the Council review the rest of his complaint at stage 2 of its complaint procedure. The Council declined to consider Mr X’s complaint further and told him he could complain to the Ombudsman. He did not do so at this stage.
24. In November 2017 the Council started to reassess Mr X’s care and support needs using a different social worker. The social worker met Mr X and his advocate several times during November, December and January 2018. It is not clear whether these meetings also involved Mr X’s wife. The Council asked for information from Mr X’s consultant and GP as part of this assessment.
25. Mr X asked to see a draft of the assessment in writing so he could comment on it. The Council said it could not do this at this time. It later said this was because it was unsure whether it could tell Mr X what the medical professionals had said without checking with them first. The social worker took a copy of the draft assessment when she visited Mr X in January 2018. The Council says it recorded Mr X’s concerns on the draft assessment. Mr X disputes this was adequately done.
26. The social worker arranged to meet Mr X in March 2018 to again discuss the assessment and support planning. The Council had still not, at that point, shared the draft in writing with Mr X as it still did not have confirmation from the health professionals about sharing their information with him.
27. The social worker said she would go through the assessment on the day, using a version on her laptop computer. Mr X was not prepared to meet on this basis, without prior sight of the draft assessment in writing. He therefore cancelled the appointment. He made subject access requests of the Council to obtain information about the assessment.
28. Mr X’s advocate tried to arrange a meeting for him and her to meet with the Council to discuss the situation. The social worker explained she could discuss the support plan but not other issues covered by Mr X’s complaint. She said she would need to be accompanied by a colleague. Mr X did not agree to this so the meeting did not happen.
29. In June 2018 Mr X made a fresh complaint to the Council about the assessment and care package. He complained:
• It had not provided him with it.
• It had not made the amendments he wanted.
• It planned to reduce his personal budget and the numbers of hours this covered.
• It had not allocated night time help.
• It had refused his request to pay his wife as an additional paid carer.
• It had ignored his need to use direct payments to help him with exercise, important to his health and wellbeing.
• He asked how the Council could decide he needed less support over time when his condition had worsened.
30. Meanwhile the social worker completed and sent out Mr X’s support plan at the end of June 2018. This set out the Council’s decision about how Mr X’s care needs should be met. It recorded the support Mr X’s wife provided for him. It identified he needed, taking account of the care from Mrs X, a personal budget to pay for 17.5 hours per week home support with personal hygiene, getting dressed and toileting. It identified the need for a further 8.5 hours per week support to access the community, totalling 26 hours per week
31. The Council replied in July to say it would respond to Mr X’s June complaint shortly. It did not do so. Mr X continued to chase up a reply and, in August 2018 he made a fresh complaint. This set out his concerns about the delay responding to his June complaint and restated his concerns about the adequacy of the assessment and resultant care package. He concluded that over the past 10 years the Council had assessed his needs and decided the amount of care he required had gone down, despite the effect of his condition on his health getting worse over that time.

The Council’s investigation

32. The Council met with Mr X in September 2018 and agreed to carry out an investigation to consider his complaint in detail.
33. The investigating officer agreed, by correspondence, a summary of complaints with Mr X and his representative in October 2018. He completed his investigation later that month. Mr X asked the investigating officer to meet with him as part of the investigation. The officer did not do so.
34. In November 2018 Mr X provided information he had given to the social worker in January 2018 about inaccuracies and omissions from the assessment that he said had still not been addressed.
35. The investigating officer interviewed the social worker involved in Mr X’s most recent assessment and care plan, their manager and accessed Mr X’s case file.
36. The officer decided he did not need to meet Mr X as part of the investigation because he and his advocate had been able to set out his complaint clearly in writing.
37. In summary the investigation considered each of Mr X’s complaints as follows:
• There were some differences of opinion or emphasis between the assessment and Mr X’s opinion. However there were no factual inaccuracies in the assessment.
• The assessment was a matter of professional judgment. Differences of opinion had been appropriately recorded. The officer was entitled to come to a decision based on her professional opinion about the care Mr X needed.
• The Council had failed to review the package between 2012 and 2017 and had therefore not monitored how direct payments had been used.
• The earlier increase in care from 21 to 35 hours had been because Mr X’s wife had been working 5 days a week at this time. She was then not able to provide as much care. The Council appeared to have been increased the package too much because she was five days a week where its calculation was based on seven days.
• Support for continence and diet had not been reduced. Mr X’s wife was providing him with night-time support. Direct Payments could not be used to pay for this “unless there was no alternative”. Mrs X’s care support needs had not been assessed because Mr X had refused a carer assessment. This offer still stood open. This would enable the council to decide whether there was no alternative to his wife providing the care.
• The social worker had not refused to give Mr X a copy of the assessment, they had withheld it pending agreement from the Consultant and GP to disclose information they had provided. However this delay could have been reduced if the Council had been clearer with them about sharing information at the time it was requested.
• The investigator could not reach a finding about whether the social worker’s behaviour toward Mr X had been professional. This was because it was one word against another. The only other person present at the assessment was Mr X’s advocate. The investigator did not consider it appropriate to seek the advocate’s view because her professional role could prevent her from expressing an opinion. The investigator also referred to his personal, positive experience of the social worker in question and gave his opinion, based on this, that it was probable Mr X had misinterpreted the social worker’s behaviour.
• The assessment had adequately reflected Mr X’s views about his needs.
38. The investigator recommended the Council place on Mr X’s file the document he had produced in January 2018 setting out the inaccuracies and omissions from the assessment. It should repeat its offer of a carer’s assessment for Mrs X. It should be clear, in future, when asking external professionals as part of an assessment that information can be shared with the assessed person.
39. The Council wrote to Mr X in November 2018 confirming it had carried out each of these actions, referring Mr X to the Ombudsman. Mr X then complained to the Ombudsman.
40. As part of my investigation I spoke to Mr X’s advocate. I considered this was appropriate because Mr X had authorised her to speak on his behalf and she was a participant throughout the assessment and complaint process.
41. She raised concerns about the Council’s communication with her and Mr X throughout. She raised particular concerns about the Council’s failure to properly consider Mr X’s cultural needs regarding provision of night time care. Mr X’s cultural and religious background meant it was not appropriate for him to be cared for by a woman other than his wife, or by a man who would, inevitably see Mrs X in her nightwear.

My findings

Reviews of care needs

42. The Council did not carry out annual reviews of Mr X’s care needs between 2012 and 2017. This is fault. Mr X argues this caused him injustice because the Council then had to start from scratch, spending more time to assess his needs, without having access to his past assessments. However, as explained below, I am satisfied there was no procedural fault in its assessments. This fault did not cause Mr X injustice because earlier assessments would probably have picked up the use of direct payments sooner and could have reduced Mr X’s care package accordingly. Although the assessments may have taken longer to carry out this did not cause significant injustice to Mr X.
43. The Council has not been able to provide me with Mr X’s assessments and care plans dating from 2012. This means neither I, nor the Council’s earlier investigator were able to review them alongside the more recent assessments. It is not fault that the Council has not kept this record from 2012 although, had it correctly reviewed Mr X’s care needs on an annual basis, this would not have left this gap in evidence.
44. The Council should have shared its completed assessment with Mr X sooner than June 2018 (having begun the assessment in November 2018). Mr X should not have needed to make a subject access request to obtain the information. The Council should apologise to him for distress and frustration caused by this. It has taken action to prevent such avoidable delays in future.

Content of the assessment

45. Mr X raised concerns about the content of the Council’s assessment. He points out his condition is progressive and deteriorating, yet the Council assessed him as needing less support. He says this is perverse. He asks whether a social worker can overrule medical advice, including from consultants, about the impact of his condition on his care needs. The social worker was entitled to consider these concerns and to use her professional judgment to come to a different conclusion regarding Mr X’s care needs. The Ombudsman cannot question decisions made using professional judgment, providing those decisions have been taken in light of relevant information, following the required process. The Council considered Mr X’s written comments, including concerning the view of medical professionals and has decided they do not alter the officer’s professional judgment. The Council has appropriately agreed to place a record on Mr X’s file of his concerns.

Use of direct payments

46. At the centre of Mr X’s complaint is his view the Council has wrongly prevented him using direct payments to pay his wife to provide for certain aspects of his care. He is also concerned it has not properly considered his reasons for needing to be cared for by his wife. He is sure the Council agreed he could use payments in this way in 2016. He also says that the assessments from 2013 showed he needed a separate main meal because ingredients would make his condition worse. The Care Act regulations and statutory guidance say direct payments cannot normally be used to pay for a spouse who is prepared and able to provide care. Whatever the Council’s earlier decision, it was entitled to reach a decision, in 2017, after its review in accordance with regulations and guidance. There is no evidence of fault in how it made this decision.
47. Mr X has raised the question of what would happen if his wife cannot continue to provide this care. He has also stated that for religious and cultural reasons, his wife is the only person who can provide him with the care he needs at night, without compromising his and her beliefs and cultural expectations.
48. The Council has correctly offered to carry out a carer’s assessment of Mrs X and has now started this process. Mr X wanted this to happen after his needs assessment and support plan had been completed. This is the appropriate way for it to evaluate whether Mrs X has support needs as a carer and to consider the appropriateness and sustainability of that care relationship. It can also consider the concerns Mr X has raised about whether his wife is the only person who can provide the care he needs, including preparation of separate meals. Mr X has concerns about the adequacy of carers assessments started since my investigation. He can complain to the Council about this, allow it to consider his complaints and then, if not satisfied, can complain to the Ombudsman.
49. Statutory guidance is clear however that councils do not have to meet care needs that are being provided by a willing and able carer. It is also clear that in most circumstances, direct payments cannot be used to pay for family members. It may be that Mr X’s situation is an exception that requires fresh consideration of this matter. However the Council is entitled to expect Mrs X to have a carer’s assessment so it can make a decision about this. Its offer of such an assessment remains open. Whatever the Council decided in 2016 regarding use of Direct Payments, it was entitled to reach a fresh view at its review in 2017.

How the Council considered Mr X’s complaint

50. The Council did not promptly address all the key issues in Mr X’s initial complaint. It did not respond to Mr X’s complaint in the timescale required by its complaint policy. It did not reply to his detailed complaint made in June 2018, other than through acknowledgement, until he made a further complaint in August. This triggered the September 2018 meeting and subsequent detailed investigation.
51. This avoidable delay was fault, causing Mr X frustration and uncertainty. He had to go to the extra and avoidable trouble of submitting a follow-up complaint. The Council apologised to Mr X in July for the ongoing delays and then commissioned the investigation in September. This was appropriate action to remedy this injustice. It should, however, review learning from Mr X’s complaint to ensure it handles future complaints in accordance with its policy, particularly with regard to keeping complainants, advocates and representatives informed about what is happening.
52. The independent investigation officer did not speak to Mr X or his advocate. The officer decided this was not necessary because the complaint summary and written correspondence from Mr X and his advocate was adequate. They decided it was not appropriate to speak to the advocate because they are professionally required to take the complainant’s side.
53. The Ombudsman’s guidance on complaint handling expects councils to make direct contact with the person making the complaint and keep this contact throughout. Direct contact does not necessarily mean face to face contact. It could mean telephone contact. It should consider whether the complainant has reasonable adjustments that make types of contact more appropriate.
54. We expect contact to be in a way and at a level that suits the needs of the complainant. Mr X told the Council he wanted to meet with the investigating officer, together with his advocate. This was important for him to get his perspective across. The Council did not consider, having regard to any reasonable adjustments Mr X might need, how best to make and maintain direct contact during the investigation. The Council’s decision it did not need to do so was poor administrative practice. It should apologise for distress caused and review its complaint handling to prevent reoccurrence.
55. Mr X complained about the conduct of the social worker towards him. The investigation did not reach a finding on this point because it said there was “no one who can provide an impartial and objective view of [the officer’s] behaviour”. The investigator decided it was not appropriate for him to speak to the advocate because their role compromised their objectivity. It was entitled to come to this decision not to reach a finding on this part of the complaint.
56. However, the investigator then referred to his personal experience of the social worker concerned and implied from this it was more likely Mr X’s perception of her behaviour toward him arose from his dispute about the assessment process.
57. This was inappropriate and unnecessary speculation that avoidably cast doubt on the investigator’s inconclusive finding regarding this point. Having appropriately decided not to reach a finding, the investigator should not then have speculated about what might have happened, based on his personal experience of the social worker. This was particularly inappropriate given the investigator had decided not to speak to Mr X or his advocate to get their side of what happened. The Council should apologise for distress caused by this fault.
58. The Council responded appropriately to each of the investigation findings. It has appropriately confirmed its actions to Mr X.

Agreed action

59. Within one month of my final decision the Council will:
• Apologise to Mr X for distress and frustration caused by not sharing its Care Act assessment with him promptly.
• Apologise to Mr X for distress caused by inappropriately commenting about the social worker’s probable behaviour towards him, having stated it was unable to reach a finding on this matter
• Apologise to Mr X for not making direct contact with him or his advocate as part of its investigation, as he had requested.
• Review its complaint handling practice to ensure this complies with its policy, particularly regarding keeping complainants and their advocates and representatives informed about progress and timescales, and about normally making direct contact with complainants as part of investigations.

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Final decision

60. I have completed my investigation. There was fault by the Council causing injustice. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman