Decision : Upheld
Decision date : 18 Jul 2019
The Ombudsman's final decision:
Summary: The Council reduced Miss Y’s support hours before enablement support established if she could achieve independence in some aspects of her life. When she was unable to achieve/maintain independence the Council failed to address this. Consequently, Miss X has some unmet eligible needs.
- Miss X complains the Council reduced her care package without proper consideration of her needs, and this is having an adverse effect on her wellbeing.
- A mental health charity supported Miss X to make this complaint.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have:
- considered the complaint and supporting information submitted by Miss X’s representative;
- considered the correspondence between Miss X and the Council, including the Council’s response to the complaint;
- made enquiries of the Council and considered the responses;
- taken account of relevant legislation;
- offered Miss X and the Council and opportunity to comment on a draft of this statement, and considered the comments made.
What I found
- The Care Act 2014 sets out local authorities’ duties in relation to assessing people’s needs and their eligibility for publicly funded care and support. Under the Care Act 2014, local authorities must:
- carry out an assessment of anyone who appears to require care and support, regardless of their likely eligibility for state-funded care
- focus the assessment on the person’s needs and how they impact on their wellbeing, and the outcomes they want to achieve
- involve the person in the assessment and, where appropriate, their carer or someone else they nominate
- provide access to an independent advocate to support the person’s involvement in the assessment if required
- consider other things besides care services that can contribute to the desired outcomes (e.g. preventive services, community support)
- The Act gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
- Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
- Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
- Miss X has Asperger’s Syndrome, anxiety, depression and obsessive-compulsive behaviour. She has lived in a National Autistic Society (NAS) supported living scheme since 2008. She also has support from a mental health charity.
- Miss X says in April 2017 the Council reduced her care package from 50 hours per week to 30 hours per week. Consequently, she is no longer able to take part in activities she enjoys, and which play a vital role in maintaining her mental health. She says she is now isolated and spends more than eight hours alone every day.
- Miss X says the Council has also refused to acknowledge her need for support to prepare meals at least twice a week. The Council says microwave meals are sufficient.
- The Council’s assessment of Miss X in February 2016 records Miss X “can have difficulties interpreting information due to her Asperger's syndrome… [Miss X] can be forgetful, her short-term memory is poor… she needs ongoing support, encouragement and reassurance to make informed decisions… she enjoys socialising and interacting with others however due to her high anxiety levels she requires frequent reassurance and support to develop and apply techniques to reduce her anxiety… [Miss X’s] ability to travel on a bus independently varies dependant on her mental health and anxiety levels. When well, [Miss X] is able to travel on a bus independently. When unwell, [Miss X] will require support and for someone to go with her when she goes out. The level of support in this area varies and [Miss X] can sometimes needs support 3/4 times per week when unwell”.
- The outcome of the assessment concluded Miss X had eligible needs in:
- Personal Care
- Practical Domestic Tasks
- Meals and Nutrition
- Friends and Being Part of the Community
- Access to Work, Education and Learning
- Keeping Safe from Harm and Helping others Around me Stay Safe
- The Council completed another assessment in April 2017. It says the assessment is wrongly dated 2016. It records, “Overall [Miss X's] anxiety and health is reported to be stable, she stays engaged with her support workers and continues to do some things independently. [Miss X’s] anxiety can fluctuate day to day and she continues to require support and prompting on a regular basis to encourage her to participate in planned activities… [Miss X] has built up strong relationships with her support workers and this has enabled her to continue to engage and achieve her goals”.
- The assessment shows Miss X’s eligible needs remained much as they were in February 2016. The assessor recorded a discussion about the use of assistive technology for medication prompting and a referral to the Council’s enablement team to work with Miss X on building confidence and skills. And, a discussion about direct payments with a view to a change of care provider.
- The Council reduced the support Miss X received from NAS from to 31 hours per week in April 2017. The assessor recorded the hours could be used flexibly throughout the week. Miss X was referred to the Council’s enablement team for short term support.
- On 11th July 2017, a social worker visited Miss X, along with a worker from the Council’s enablement team to complete a short-term support plan. The support plan sets out the desired goals, to develop cooking skills and social interaction in the community, and to reduce reliance on support from NAS. The Council says Miss X “was supported to attend various taster sessions… to explore social inclusion”.
- The records show Miss X received 21 weeks enablement support from 2 August 2017.
- The Council held a review in November 2017. The enablement support was ongoing and recorded as going well. The review document is unsigned.
- Miss X says she was unhappy with the reduced support hours. Her representative submitted a complaint to the Council on her behalf in November 2017, saying it had failed to consider Miss X’s needs and the impact reducing the care package had on her mental health, and that she was spending a lot of time alone.
- The Council met with Miss X and her representative in January 2018. I have seen a copy of a letter the Council sent to Miss X following this meeting. This confirms an agreement to put the complaint on hold to allow the enablement team to continue to work with Miss X and a subsequent review to be completed.
- The records show the enablement support provided to Miss X over the 21 weeks. A support worker recorded, “I worked with [Miss X] over extended period of 9 weeks to maximise independent cooking skills. However despite introducing techniques to manage her anxiety around cooking enablement observations were that [Miss X] became anxious and easily distracted which could potentially become a risk when using the hob”. The worker recorded Miss X could prepare simple snacks and use the microwave.
- The support worker recorded Miss X was attending a weekly social group in the community independently. Miss X cancelled some planned trips to social clubs/activities, saying she was not ready to attend but would consider it in the future. The enablement support ended in March 2018. A review of the support and outcome records that Miss X achieved goals in accessing the community and making friends, but she did not achieve the goal set for managing and maintaining nutrition.
- The Council completed a multidisciplinary review of Miss X’s needs in August 2018. Miss X was present, along with her parents, a representative from a mental health charity, NAS, and a nurse from the community mental health team. The records of this meeting show Miss X was dissatisfied with the support she was receiving. She requested an extra 30 minutes support each day for meal preparation and additional support for social activities and to enable her to volunteer at a charity shop. She asked for an additional 6.5 hours support per week. An NAS worker present told the assessor Miss X was spending a lot of time alone and did not have the confidence to go out unsupported. The NAS worker said Miss X was unable to plan, prepare and cook fresh meals independently. The Council’s assessor recorded Miss X could go into town independently to meet her mother and did attend some social activities with NAS support. “…a discussion around supporting [Miss X] to become more independent and less reliant on paid staff. However [NAS worker] argued that when [Miss X] had first left home to live independently she had required the 101 hours per week and progress has been made slowly. The assessor recorded “I explained that the reduction in support hours was initiated by ASC following a review and with input via the Enablement Team to promote [Miss X's] independence”.
- The views of a nurse from the Community Mental Health Team were recorded. The nurse saw Miss X every six months. She said Miss X was stable and there had been no hospital admissions, but when she “last saw [Miss X] with her support worker in May 2018, they reported concerns that the support hours were under review again and felt that [Miss X’s] activities were rushed”.
- The outcome of the review concluded Miss X needed support with most daily living tasks, some more than others. Under ‘nutrition’ the assessor recorded “[Miss X] requires support and supervision whilst in the kitchen due to poor concentration as she can become easily distracted”. Under ‘keeping safe from harm’ “[Miss X] requires support, reassurance and motivation on a daily basis to promote and maintain her physical and mental well being. [Miss X] could be at risk of becoming socially isolated, at risk of self neglect and neglect of her home environment”. The review document is unsigned. The allocated support hours remained at 31 hours per week to be “used flexibly throughout the week)”.
- Miss X remained dissatisfied with the level of support she was receiving and reiterated the impact the reduced hours were having on her wellbeing. Her representative submitted a second formal complaint to the Council, following which the Council met with Miss X and NAS again in October 2018. I have seen a copy of a letter the Council sent to Miss X following the meeting. The author said the support hours would not be increased and “I have explained to [Miss X], Adult Social Care has a responsibility to meet people’s eligible needs; this may not always include everything that people feel gives them the life they want, but direct payments allow people to prioritise and decide which areas are most important to them in meeting their outcomes”.
Evidence from NAS
- NAS says the Council failed to give proper consideration to information it provided about Miss X, and “that irrelevant comparisons were made with others receiving less hours of support and there was an inferred expectation that Miss X should be the same. The pressure for [Miss X] to conform to this expectation plus the uncertainty of further suggested reductions in hours, adversely affected [Miss X’s] well-being, for a considerable amount of time and as a consequence her ability to achieve her chosen goals”.
- Miss X receives 31 support hours a week funded by a direct payment. NAS provide the support. A mental health charity acting as Miss X’s representative says Miss X is unable to attend social activities/groups alone and she spends many hours alone each day. She receives no support to prepare meals and relies on microwave meals.
- It is not the Ombudsman’s role to decide what services a person is entitled to receive. The Ombudsman’s role is to establish if the Council has assessed a person’s needs properly and acted in accordance with the law.
- Needs assessments should consider a persons’ physical and psychological needs. It must consider how a person’s needs may change or fluctuate and consider how this impacts on their wellbeing.
- In this case, the Council failed to do so.
- Assessments completed in February 2016 and April 2017 show Miss X’s needs remained largely the same. In April 2017 the Council considered if, with targeted support from its enablement team, Miss X could possibly increase her independence. The Council is not wrong for doing so, however it reduced Miss X’s support hours before the enablement support began, at this point it could not be known whether Miss X would be able to achieve the set goals because they were untested. At this point it was premature to suggest any reduction in support.
- The Council says it reduced Miss X’s support hours to reduce her reliance of NAS support workers and increase her independence. It is clear Miss X was unable to achieve the outcomes hoped for. Whilst she attended some ‘taster’ sessions’ in the community this was done with support, she was unable to attend all sessions, and has been unable to maintain independence in accessing the activities she was introduced to. Consequently, she has become increasingly social isolated. The Council failed to address this.
- The Council’s records show Miss X was unable to achieve independence in maintaining and managing nutrition. The Council’s assessments in 2016 and 2017 show this to be an eligible need. It is not acceptable to suggest a person can manage on microwave meals alone.
- Where a person has an assessed eligible need, the Council has a duty to meet the need. In this case it is clear Miss X has eligible needs which are not being met. This is fault.
- The Council says it took account of the views of Miss X and her representative in completing a support plan. The evidence does not support this. Following the cessation of enablement support the Council implemented a support plan despite objections from Miss X and her representatives. It made no reasonable attempts to resolve the dispute and reach an agreement. This effectively denied Miss X a voice. This is contrary to the principles and spirit of the Care Act.
- In accordance with national policy, support planning should be person-centred, and the person must have every reasonable opportunity to be involved in the planning to the extent that they choose and are able. The Council failed to do this. This is fault.
- Had Miss X not pursued her complaint with the Ombudsman I have no doubt she would have been left with an unsuitable support package that did not genuinely involve her views on what is needed and, is clearly not the person-centred model that is required by the Care Act.
- To remedy the injustice caused the Council will:
- undertake a full reassessment of Miss X’s needs, taking account of all her physical and psychological needs, and the fluctuating nature of these needs. It should include the views of significant others in her life, and provide this office with a copy of the completed assessment;
- draw up a support plan from the assessment, and take all reasonable steps to reach agreement with Miss X, and provide this office with a copy;
- provide Miss X with an apology from a director of adult services for the failures set out above, and make a payment to her of £250 for the time and trouble she has been put to pursuing this complaint with the Council and the Ombudsman
Within three months
- consider any training needs of officers completing or overseeing needs assessments under the Care Act
- ensure officers act in accordance with the Care Act.
- Provide this office with evidence of the above.
- There is fault by the Council causing injustice. The above recommendations are a suitable way to remedy the injustice caused to Mrs X and Mr Y.
- It is on this basis; the complaint will be closed.
Investigator's decision on behalf of the Ombudsman