Summary: Ms D complains about the way in which the Council reassessed Mrs M’s needs and determined her personal budget for homecare support. The Ombudsman found fault with the process through which the Council assessed Mrs M in December 2016 and March 2017, and the way it recorded this. There was also a delay in carrying out Mrs M’s care review in 2018. The Council will apologise to Ms D for the distress this caused her and backdate any increase in personal budget. It will also share the lessons learned with its staff.

The complaint

1. The complainant, whom I shall call Ms D, complained to us on behalf of her mother, whom I shall call Mrs M. Ms D complained:
• The Council failed to carry out a proper / accurate / comprehensive care needs assessment (care review) in December 2016.
• When she complained about this in February 2017, the Council failed to:
1. Register it, investigate it, and respond to it as an official complaint. She says that if the Council had done this (and referred her to the Ombudsman if she remained unhappy) she could have gone to the Ombudsman earlier
2. Carry out a proper / accurate / comprehensive care needs assessment (care review) in March 2017. It also did not share a copy of the assessment or tell her of the result.
• When she made a complaint and the Council agreed to increase her mother’s personal budget following her care needs assessment (care review) in October 2017, it only backdated this increase to March 2017, instead of December 2016 when it should have carried out a proper care needs assessment (care review).
• The Council failed to provide a care act advocate to support her and her mother with the needs assessment (review) in October 2017.
• The Council was wrong to recommend, following the needs assessment in October 2017, that her mother should move into a care home, which is against her mother’s wish.
• The Council was wrong to make a threat to her that it would stop paying for her mother’s care support, and would ask her to repay £30,000 in fees it had paid so far, if she would not put her mother’s home back into her mother’s name.
• There has been an unreasonable delay, since October 2017, in reviewing her mother’s care plan.

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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. 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)
4. 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

5. I considered the information I received from Ms D and the Council, and carried out an interview with a manager from the Council. I shared a copy of my draft decision statement with Ms D and the Council for comments and considered any comments I received, before I made my final decision.

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What I found

6. In determining how to meet needs, a council may take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. A council may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). Paragraph 10.27 of the statutory guidance
7. The statutory guidance goes on to state that “a council may take decisions on a case-by-case basis, which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value”.
8. Councils must arrange an independent advocate to facilitate the involvement of a person in the process of their assessment, when:
• The person would have substantial difficulty in being fully involved in these processes if the Council would not provide an independent advocate.
• There is no appropriate individual available to support and represent the person’s wishes. Paragraph 7.44 of the statutory guidance
9. A council must consider whether the person would experience substantial difficulty in any of these four areas: understanding the information provided; retaining the information; using or weighing up the information as part of the process of being involved; and communicating the person’s views, wishes or feelings. Where a person has substantial difficulty in any of these four areas, then they need assistance. Paragraph 6.33 of the statutory guidance
10. Where there is no suitable family member or friend who is willing and able to help the person’s involvement effectively, the council must appoint an independent advocate. There may also be some cases where the council considers that a person needs the support of both a family member and an advocate; perhaps because the family member can provide a lot of information but not enough support. Paragraph 7.38 of the statutory guidance
11. The statutory guidance also says that:
• When undertaking a financial assessment, a council may identify circumstances that suggest that a person may have deliberately deprived themselves of assets to reduce the contribution towards the cost of their care.
• The council should therefore consider, among others, if the person could have had a reasonable expectation they would need care and support, at the point they disposed of the capital.
• If a council decides that a person has deliberately deprived themselves of assets to avoid or reduce a charge for care and support, they can treat that person as still having the asset for the purposes of the financial assessment and charge them accordingly.

What happened

12. In June 2015, Mrs M’s needs assessment and support plan said that:
• Mrs M has MS and is in her sixties. She is living with a partner, who supports her with some aspects of her care (chores and emotional support). As her MS is progressing, her care needs are increasing. It affects her memory and ability to process information.
• Mrs M has limited mobility due to muscle weakness. Mrs M needs double up support with transfers at certain times per day to ensure safe transfers. Her partner can help with this at times.
• Mrs M needs all drinks and food prepared for her and some help with feeding. Her partner can provide occasional support with feeding.
• The Council concluded Mrs M’s needs should be met within a residential care home. However, she did not want to go into a home. Mrs M preferred to remain at home with a package consisting of a live-in carer and a second carer visiting during the day to aid with transfers.
13. The Council agreed, on an exceptional basis, that it would provide a personal budget towards the cost of her care at home. The Council calculated the personal budget (£342 a week) by using its resource allocation system (RAS), and based on her assessed needs. The personal budget was similar to the amount the Council would have paid at the time for a residential care placement for Mrs M. However, the cost of providing Mrs M’s care in the community was significantly more than the cost of residential care. Under these circumstances, the Council was not required to pay for the full cost of her homecare, as it had concluded that residential care would have been an appropriate way to meet her needs and the option that would deliver “the outcomes desired for the best value”. Mrs M and her family has paid the difference in the cost.

Ms D’s complaint about the alleged inappropriate and inaccurate care review in December 2016

14. The Council had to carry out an annual reassessment of Mrs M’s needs at the end of 2016, to find out if her needs had increased. As Mrs M’s social worker was about to leave the Council, the social worker asked Ms D to urgently send her information about her mother’s care needs.
15. The assessment form states that:
• Mrs M was happy for her daughter to support her and advocate for her during the assessment process.
• A care agency visited three times a day to help with a shower, personal care, hoisting; and continence care.
• Mrs M’s partner, who had previously provided some care support, was not currently living with her.
• Ms D believed the budget was not enough and wanted an increase.
16. Ms D complains the Council did not carry out this assessment properly, as it did not include a visit to her mother. She said it was inaccurate and she did not get a copy of it to enable her to comment. Ms D pointed out several mistakes to me, which could have been prevented if the assessment had been carried out through a visit.
17. At the interview, the Council told me that while it accepts the social worker should have visited her mother, the information included in the assessment is comprehensive and obtained from various sources. It believes the social worker sent a copy of the assessment to Ms D before she left.

Assessment:

18. The Council should have carried out a visit to Mrs M to assess what support needs she had, within her home environment. It failed to do this, which is fault. It would have been good practice also to have contacted the care agency to get more information about Mrs M’s support. This was even more important, because Ms D claimed her mother’s needs had increased and she should therefore have an increase in her personal budget.
19. Ms D told me she did not receive a copy of the needs assessment nor was it explained to her how the Council had reached the decision that her personal budget should not increase. I did not receive a record from the Council that provided evidence the social worker sent this to her. Therefore, on the balance of probabilities, the Council did not provide this to Ms D, which is fault.

Ms D’s complaint about the way the Council responded to the complaint she made in February 2017

20. Ms D made an official complaint to the Council in February 2017. However, Ms D says the Council subsequently failed to:
• Register it, investigate it, and respond to it as an official complaint. She says that if the Council had done this (and referred her to the Ombudsman if she remained unhappy) she could have gone to the Ombudsman earlier.
• Carry out an appropriate / accurate / comprehensive care needs reassessment in March 2017. It also did not share a copy of this assessment, or tell her of the outcome.
21. Following Ms D’s complaint about the December 2016 assessment, the Council told Ms D it would allocate a new social worker and ask her to carry out a new reassessment. The Council told me that if a person is unhappy with their assessment, it will reallocate the case to ensure that a fair assessment has taken place. However, it has also acknowledged to me that it should, nevertheless, have dealt with the complaint through its complaints process. The Council says that: while it responded to Ms D’s complaint at the time, it should have also responded in writing to the specific complaint issues she had raised about the first assessment.
22. The new social worker spoke to Ms D in February 2017. Ms D explained that her mother needed more funding, because it was difficult for the family to maintain the top up. Ms D says she explained to the social worker that her mother’s needs had increased, at the same time when her partner was no longer able to provide any support to her. Ms D told the Council that she could not be present on the day the social worker would visit her mother. Instead, the social worker should arrange for her mother’s live-in carer to be there to support her mother and provide information. However, on the day of the assessment, the carer present was not one of Mrs M’s regular carers and could therefore not provide enough information. The social worker said she would contact one of the regular carers as well to gain further information. However, I did not see evidence of this in the Council’s records.
23. The social worker failed to complete an assessment of the March 2017 reassessment / review.
24. The Council says the new social worker carried out a visit to Mrs M and concluded in March 2017, following the visit, there had not been a change in need since December 2016. The Council has apologised to Ms D for its failure to document this assessment.
25. The Council invited Ms D in September 2017 to come for a meeting to discuss her concerns and frustrations about the two assessments.

Assessment

26. While the Council acted appropriately by organising a new reassessment by a different social worker, the Council acknowledged it failed to provide a written response to the specific complaint issues Ms D raised in February 2017.
27. Furthermore, the Council failed to contact one of the regular carers, as promised, to ensure it obtained all the information needed. Mrs M had difficulties communicating her needs and views, which is why this was even more important.
28. The Council also failed to document the March 2017 reassessment / review, which is fault. As a result, I am unable to conclude the Council correctly assessed Mrs M’s needs in March 2017. The Council also failed to explain to Ms D how / why it had reached this conclusion.
29. The conclusion itself, that Mrs M’s needs had not increased since the review in December 2016, was also incorrect, because that assessment was being contested by Mrs M as part of her complaint.

Ms D’s complaint about how far the Council should backdate the increase in her mother’s personal budget

30. As Ms D was unhappy about the way in which the Council had been reassessing her mother’s needs, she asked the Council in September 2017 for an urgent reassessment. The Council allocated the case to a new social worker, who carried out a review visit in October 2017. Following the review, the Council agreed to increase Mrs M’s personal budget from £342 to £450 per week.
31. The Council subsequently agreed to backdate this increase to March 2017. The Council says it decided to backdate it to March 2017, because it was not able to determine when exactly, between March and October 2017, Mrs M’s needs had increased.
32. Ms D complains the Council should have backdated the increase to December 2016, because it failed to carry out an appropriate assessment then, as well as in March 2017.

Assessment

33. As mentioned in paragraph 27 and 28 above, I am unable to:
• Conclude that the Council correctly assessed Mrs M’s needs in March 2017.
• Determine on the basis of what specific information the Council concluded that Mrs M’s personal budget should remain the same.
34. As such, the Council should have backdated the increase to December 2016.

The recommendation that her mother should go into residential care

35. Ms D complained the Council was wrong to recommend, following the needs assessment in October 2017, that her mother should move into a care home. She says a residential care home is not suitable for her mother, because: she is too young, it would be detrimental for her emotional wellbeing and it is against her mother’s wish.
36. The Council says:
• The social worker carried out a thorough care review in October 2017, taking into account all areas of need and the views of involved parties. The social worker assessed that Mrs M has 24-hour care needs, which could be met in a 24-hour care home environment.
• In determining how to meet needs, the Council may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the Council is sufficient to meet the needs of the entire local population. The Council may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met. The Council may take decisions (on a case-by-case basis) which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. As a result of the contributions that Mrs M would have to pay, residential care would be considered best value in terms of public monies.
• This is also why the Council has not agreed to provide the full cost of Mrs M’s 24-hour care needs at home. The Council decided not to provide a 24-hour live-in care package in Mrs M’s home, because there were no exceptional circumstances that would require the Council to put this type of provision in place.

Assessment

37. I found there was no fault by the Council. The Council has appropriately assessed Mrs M’s needs in October 2017, and subsequently reached a decision it is entitled to make.

Ms D’s complaint that the Council failed to provide her with a care act advocate in 2017

38. Ms D told me she was advised to seek help, as she was struggling to deal with the overload of information about her mother’s needs and financial assessments. She asked the Council for advocacy support, to support her and her mother. She said she herself had a brain injury, as a result of which she could not deal with stress and pressure, and needed support to attend meetings. However, Ms D says that, after the Council had promised to organise an advocate for her, the Council then decided against providing a care act advocate.
39. Ms D referred herself to an advocacy service on 20 September 2017. However, soon after this, Ms D’s need for advocacy support, changed to a need for legal support, to deal with matters brought up as a result of her mother’s financial assessment. The Council discussed this with Ms D in October 2017:
• The record states Ms D wanted an advocate for herself and had referred herself to an advocacy service. The Council told Ms D it could make a referral for advocacy support for her mother from an IMCA (Independent Mental Capacity Advocate). However, Ms D said the advocate had to be a family member who knew Mrs M. It was agreed that another family member would attend the Care Act assessment to act as Mrs M’s advocate.
• The Council told Ms D that Ms D did not meet the criteria for advocacy support for herself because, according to the Council, she had capacity to participate in assessments and meetings.
• The Council also told Ms D that “you hold a Power of Attorney (to make financial decisions on behalf her mother) for your mother. If you are requesting support in this regard, I would suggest you seek the services of a Legal Professional if this is becoming unmanageable for you”.

Assessment

40. I found there was no fault by the Council. The Council offered to make a referral for advocacy support for Mrs M. It also concluded, and explained to Ms D, why she did not meet the criteria for advocacy support for herself. This was a judgement the Council was entitled to make.
41. Ms D’s need for support soon changed to one in which she needed legal advice / support, which she is entitled to obtain on her own account as part her role as her mother’s PoA.

Ms D’s complaint that the Council threatened to stop paying for her mother’s care support.

42. The Council carried out a financial assessment on 12 September 2017 to determine how much Mrs M would have to contribute towards the cost of her care. As part of the assessment, it became apparent that Ms D’s property had been transferred into the name of her children.
43. The Council explained to Ms D in November 2017 that:
• As a part of a financial assessment, a council has a duty to consider whether a Deprivation of Assets has occurred. In Mrs M’s case, her property was transferred at a time, when she was already in receipt of services funded by the Council.
• The Council concluded that: by transferring the property to Ms D, without getting any money for it, a Deprivation of Assets occurred. Mrs M should have received the market value for her property upon transfer. If she had received this, she would have more than £23,250 of capital, which would mean that Mrs M would have to pay for the full cost of her care support.
• As such, the Council said that Ms D could resolve this situation by transferring the property back into her mother’s name. It said that, if the property was not transferred back into Mrs M’s name, the Deprivation of Assets decision would stand and the Council would cease funding her care from 15 December 2017.
44. As a result, Ms D put the property back into her mother’s name in December 2017.

Assessment

45. I found there was no fault by the Council. The Council found that Mrs M’s asset was transferred at a time she was already receiving care and support, and this deprived her of capital that would otherwise be available to pay for her care. The Council made a decision in line with relevant guidance (see paragraph 11) and the situation was quickly resolved by the family transferring the property back into Mrs M’s name.

Ms D’s complaint that there was an unreasonable delay, after October 2017, in reviewing her mother’s care plan.

46. The Council carried out another care review in March 2019. The review identified there has been a decline in Mrs M's physical health. As a result, she now needed community nurse intervention more frequently than what is routinely planned.
47. Mrs M’s GP confirmed that all of Mrs M's needs (health and social care) could be met through a nursing home placement. The Council said it agrees with this. There are medically trained nurses in nursing homes and staff is available on a 24-hour basis. It is therefore felt that Mrs M’s needs can be met in this environment. However, Ms D and her mother did still not want to consider a nursing home.
48. Following the assessment, the Council decided that it would, from now on, link the level of Mrs M’s personal budget to the cost of Mrs M’s placement in a home. As such, Mrs M’s personal budget increased to £541.95 per week, to bring it to the same level as the cost of a nursing home placement in West Sussex.
49. The Council acknowledged to me that the reassessment carried out in 2019, should have been carried out in October 2018; one year after the previous one. However, it said that Ms D had not indicated to the Council that a review or reassessment was required as a result of a significant change in her needs during this time frame.

Assessment

50. Statutory guidance says councils need to conduct a periodic review of care plans. It is the expectation that councils should conduct a review of the care plan no later than every 12 months. The Council has agreed that it should have carried out Mrs M’s reassessment in October 2018 (five months earlier).
51. The Council decided in March 2019 to start linking Mrs M’s personal budget to the cost of a placement in a home for Mrs M. Before March 2019, the Council used its RAS. The Council should therefore review, using its RAS, if Mrs M’s increased support needs would have resulted in an increase in her personal budget, if the review had taken place in October 2018. If so, it should backdate the increase to cover the period October 2018 to March 2019.

Agreed action

52. I recommended the Council should, within four weeks of my decision:
• Provide an apology to Ms D for the faults identified above, the distress these have caused her and the time and trouble she had to invest to pursue and resolve these. It should also pay Ms D a financial remedy of £200.
• Carry out the recommendations with regards to backdating Mrs M’s personal budget as mentioned in paragraph 34 and 51.
• Share the faults above and lessons learned with all adult social care staff members involved with carrying out needs assessments and care reviews and remind them of the importance to explain to clients how and why they have reached a certain decision.

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Final decision

53. For reasons explained above, I found there was fault in the Council’s actions. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman