Devon County Council (18 014 336)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 23 Oct 2019

The Ombudsman's final decision:

Summary: Miss X complains the Council was wrong to decide she does not have eligible needs after a Care Act assessment completed in March 2018. The Ombudsman found the overall decision was an exercise of the Council’s professional judgement and was properly taken. There was fault in how the Council explained part of the assessment process to Miss X. However, this did not cause her a significant personal injustice.

The complaint

  1. Miss X complains the Council was wrong to decide she does not have eligible needs after a Care Act assessment completed in March 2018. She is particularly unhappy the assessment relied on information from a previous assessment which she says the Council knew she disputed. Miss X says as a result of the Council’s decision she has struggled to cope in her daily life.

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What I have investigated

  1. I have only investigated the Care Act assessment carried out by the Council which started in November 2017 and concluded in March 2018.
  2. I cannot investigate the reliance on information from a previous assessment and will explain my reasons at the end of this statement.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I spoke with Miss X and read the documents she sent the Ombudsman in support of her complaint. I wrote to the Council to make enquiries and reviewed the material it sent in response.
  2. I have taken into account the Council’s responsibilities as laid down in the Care Act 2014 and the statutory guidance which accompanies it. I have also seen the Council’s policy called ‘Eligibility for Adult Social Care and Support, Policy Guidance’.
  3. I shared my draft decision with Miss X and the Council and I invited them to comment on it.

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What I found

The Law

  1. 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. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their well-being and the results they want to achieve. It must also involve the individual, their carer or any other person they might want involved.
  2. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
  3. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. 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. To have needs which are eligible for support, all the following must apply:
  1. The needs must arise from or be related to a physical or mental impairment or illness.
  2. Because of the needs, the adult must be unable to achieve two or more of the following:
  • Managing and maintaining nutrition;
  • Maintaining personal hygiene;
  • Managing toilet needs;
  • Being appropriately clothed;
  • Being able to make use of the adult’s home safely;
  • Maintaining a habitable home environment;
  • Developing and maintaining family or other personal relationships;
  • Accessing and engaging in work, training, education or volunteering;
  • Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
  • Carrying out any caring responsibilities the adult has for a child.
  1. Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.
  1. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.

Miss X

  1. Miss X lives alone in a rural area. She has a number of diagnosed medical conditions which she says affects her ability to achieve some of activities listed above. She says her condition fluctuates and so sometimes her needs are greater than others.
  2. The Council previously provided Miss X with direct payments so she could arrange her own care flexibly, but this stopped in late 2016 after a Care Act assessment concluded she no longer had eligible needs. Miss X complained to the Ombudsman about that decision. We decided it was a professional judgement decision for the officer carrying out the assessment and there were no grounds to say it was fault.
  3. The Council received a request to assess Miss X once again under the Care Act in November 2017. An occupational therapist (OT) who was visiting Miss X made the referral, which was not urgent, on her behalf. The Council assigned Social Worker A to carry out the assessment. Social Worker A telephoned Miss X within four weeks of the referral and arranged a home visit for the following week.
  4. Social Worker A carried out the home visit with her manager. The Council says because of Miss X’s previous complaint it wanted to make sure this assessment was completed correctly. The case notes show observations from Social Worker A found Miss X had been able to carry out some daily tasks without help. Miss X provided an update on her medical conditions and difficulties getting out and about in the community. The note ends by saying Miss X, “reported that she was experiencing some difficulties in managing her personal care” and she “consented to a referral to the Community Rehab Team for a functional assessment of activities of daily living.”
  5. Miss X says she did not agree to a functional assessment. She instead thought Social Worker A was intending to seek medical support to better understand her conditions and to inform the overall assessment.
  6. The cases notes show Social Worker A contacted the Community Rehab Team around a week after the home visit. The initial plan was to carry out a joint assessment visit with an OT. The Council accepts the brief did not go into any further detail. This OT was different to the one who put forward Miss X for assessment a few weeks previously. The Council arranged for this to take place in January 2018, although Social Worker A’s manager went with the OT in her place.
  7. The Council says, as a result of four visits by the OT, it concluded Miss X did not have any eligible needs. Miss X says the visits only involved conversations with the OT, without any active assessment of her ability to carry out household tasks. She says most of what the OT saw were low intensity tasks, such a making a pot of tea. The Council closed its assessment in late March 2018 and sent a copy to Miss X early the following month. It then took until June 2018 for Social Worker A to process a referral to a community group to support Miss X with social inclusion. By this point Miss X had already complained about the result of the assessment.
  8. Miss X points to a letter she has seen which the OT sent to her GP in May 2018, summarising the visits. Specifically, it says “no specific functional assessments were completed.” The letter does however describe everyday tasks the OT knew Miss X had completed. It ends by saying, “following my assessment I concur with my social service colleagues that Miss X does not meet the current eligibility criteria.”
  9. Miss X disputes the overall result of her Care Act assessment. She says the Council has not properly applied the national eligibility requirements correctly. The Council says it believes it carried out a person-centred assessment, incorporating the views of other professionals. It witnessed Miss X carrying out household tasks independently and decided she had no eligible needs.
  10. The Council told the Ombudsman there was some delay in completing its assessment, caused by the wait for the OT’s findings. However, it says the result would not have changed if it had made the decision sooner.

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  1. The Ombudsman is not an appeals body. I cannot substitute my own view of whether Miss X has eligible needs for the Council’s decision. A decision which relies on the professional judgement of a suitably trained officer will not be fault if it followed the proper process and considered all relevant information. The fact Miss X strongly disagrees with the result does not mean the decision was fault.
  2. I have seen the paperwork relating to Miss X’s Care Act assessment, as well as case notes and related correspondence. I am satisfied Social Worker A was a suitable officer to conduct the assessment. I can see she met with Miss X at home, provided her own observations and arranged for an OT to carry out further observations too. She delayed the outcome of the assessment to enable the OT to do her work.
  3. As I was not present while the assessment visit took place, I cannot reach any firm conclusions on whether Social Worker A misinterpreted any of Miss X’s answers. I can see parts of the previous year’s assessment were carried over, but Social Worker A added new comments too.
  4. There is no timescale in which councils have to complete assessments, but it is important to complete them promptly as people may have unmet needs in the meantime. Although the assessing officer can seek advice from other professionals, the final decision is theirs to take. Having reviewed the documents available to me, I do not consider there was any significant delay in this case caused by complete inactivity. Although the Council took from December 2017 to March 2018 to finish Miss X’s assessment, the reasons for doing so are reasonable.
  5. It was not fault to seek the input of the OT. However, I do find fault with the Council’s use of the term ‘functional assessment’ to describe what the OT was going to do. The OT’s resulting letter to Miss X’s GP makes clear she completed no specific functional assessments. Instead, what took place was really several periods of observation by another professional. Although the OT was a suitable person to complete the task, Miss X misunderstood what this would involve. She believed a medical professional was going to assess her needs in light of her medical conditions. That was not the case.
  6. On balance, I conclude the Council should have explained better what it wanted to achieve from engaging the OT. Especially as it was going to delay the result of the assessment itself. However, I do not consider this caused any significant injustice to Miss X. There is no evidence to suggest the Council would have found Miss X had eligible needs until the OT’s involvement. The opposite is true. That being the case, the OT’s involvement made the assessment more robust. That is to the benefit of Miss X and the Council.

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Final decision

  1. Although there was fault by the Council when it described observations by an occupational therapist as a ‘functional assessment’ when it was not, this did not cause any significant personal injustice.

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Parts of the complaint that I did not investigate

  1. Miss X disputes the findings from previous Care Act assessments, which she says carried over into the one I have investigated.
  2. The Ombudsman investigated Miss X’s complaint about the previous assessments in 2017. We decided the officer had reached conclusions based on information provided by Miss X and recorded in the assessment paperwork. On that basis, I will not revisit those findings and cannot investigate a matter we have already looked at.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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