Decision : Upheld
Decision date : 17 Jul 2019
The Ombudsman's final decision:
Summary: There was fault in the Council’s handling of a request for a care assessment, as it delayed completing the assessment for nearly four years. This has caused a serious injustice, which the Council has agreed to remedy. It has also agreed to review its handling of the matter to determine the reason behind the delay.
- The complainant, to whom I will refer as Mr P, is represented by his mother, to whom I will refer as Mrs B.
- Mrs B complains the Council has failed to undertake a care assessment of Mr P, despite repeated requests over a number of years.
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)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
- I reviewed the Council’s case notes, Mrs B complaint to the Council and its response.
- I also shared a draft copy of this decision with each party for their comments.
What I found
- Mr P has complex physical health needs and learning difficulties. He had a Statement of Educational Need and now has an Education, Health & Care (EHC) plan. Mr P turned 18 in August 2015.
- On 29 July 2016, the Council referred Mr P for an assessment by the learning disability team. It recorded that he had “multiple medical needs and [a] diagnosis for LD [learning disability]”.
- On 2 August, the Council referred Mr P to its transition service. On the same date, it noted he and Mrs B had requested a care assessment, and that he needed to be added to the Council’s waiting list.
- On 15 March 2017, the Council contacted Mrs B. She explained she was looking for support to help Mr P access social activities, and that she would like to explore the possibility of receiving Direct Payments. However, she understood Mr P needed to have a care assessment first.
- The Council gave Mrs B information about local leisure activities which might be suitable for Mr P. It also referred Mrs B for a carer assessment, and referred Mr P to a learning disability nursing team to create a Health Action Plan. It sent her an email on 22 March, confirming it had done this, and also providing Mrs B with information about a local carers’ support group.
- On 3 April, the Council contacted Mrs B again. She said she had found the information the Council sent helpful, but had not heard anything further about the carers’ assessment.
- On 24 April 2018, a Direct Payments advisor met Mrs B. She noted Mrs B had asked her again about Direct Payments, and that Mr P had been waiting since May 2015 for an assessment.
- On 31 October, Mrs B talked to the advisor again at a carers’ meeting. The advisor subsequently emailed a social worker, again noting the length of time Mr P had been waiting for an assessment, and that Mrs B was considering making a complaint.
- At around the same time, the Council invited Mrs B to partake in its annual social care survey. Mrs B responded to the survey by criticising the Council’s failure to assess Mr P, and her inability to get a response from the Council when she raised the issue. The Council decided to treat Mrs B’s response as a complaint.
- The Council responded on 14 November. It confirmed the Direct Payments advisor had made an enquiry on Mrs B’s behalf, but had been “unable to provide [it] with the correct for information … to identify [Mr P]” and so it had been unable to progress the referral. It also said a social worker, whom Mrs B had said she had tried to contact, could not recall any conversations or messages with Mrs B.
- The Council said its transition service had only become aware of Mr P after a referral was made in 2016. But the transition service only worked with those over the age of 18 with a diagnosed learning disability, and so would have been unaware of Mr P “since he was 17”.
- It went on to say its records showed the receipt of a referral in July 2017, and contact by a social worker in March 2017. This had led to referrals to the local learning disability nursing team and the Acute Liaison nurse, as well as Mrs B being sent the information about local leisure activities.
- The Council said Mr P would be allocated for a care assessment to determine if he had eligible needs, and if so, Mrs B would be able to take support in the form of Direct Payments. It also said it would expedite Mr P’s case.
- On 23 January 2019, Mrs B complained to the Ombudsman. She said the Council had still not undertaken its assessment of Mr P.
- On 21 March, the Council called Mrs B to arrange a home visit with her and Mr P. They discussed Mr P’s current activities, the effects of his various health needs, and his income. The Council explained it would need to carry out a financial assessment of him, to which Mrs B agreed, and arranged to visit Mr P at home on 28 March.
- On 9 April, the Ombudsman notified the Council he intended to investigate Mr P’s complaint. On 10 May, we sent an enquiry letter to the Council.
- On 17 May, the Council noted it had completed the home visit to Mr P. On 20 May, it called Mrs B and said it would complete the care assessment and post it to her by 23 May.
- On 21 May, the Council noted it had completed the care assessment for Mr P.
- 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 wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
- 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.
- Direct payments are monetary payments made to individuals who ask for one to meet some or all 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. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
- As explained at paragraph 4, the Ombudsman generally expects complainants to approach him within 12 months of becoming aware of the relevant issue. We will not normally accept a complaint where a person has waited for longer than this, without good reason.
- However, we have exercised discretion to investigate the events in Mr P’s case going back to August 2015. This is because his complaint is about matters which remain current, but which cannot be logically separated from the older events.
- In addition, we note Mrs B was told Mr P had been added to the Council’s waiting list for an assessment. We therefore consider there was good reason for her delay in bringing Mr P’s complaint to the Ombudsman.
- Mr P had been receiving services from the Council for a number of years before he turned 18. He had a Statement of Educational Need, and now has an EHC plan.
- There is a duty for authorities, under the Care Act, to decide what they will do when a person, who has or may have care needs, approaches their 18th birthday. If the person is already receiving services, the authority may decide to simply treat his or her existing assessment as an adult care assessment. Alternatively, it may decide to undertake a new assessment. But authorities should make clear their decision with the person and their parents or guardians.
- The Council’s case notes show it referred Mr P to its transition service in August 2016. This was well after his 18th birthday, and in fact he was about to turn 19. Around the same time, the Council recorded there was a need to undertake a care assessment for Mr P, indicating it had not decided to maintain his existing assessment.
- While the Council can legitimately decide to undertake a new assessment, the lateness of Mr P’s referral to the transition service suggests this had now become a matter of necessity, rather than choice.
- In its complaint response, the Council says:
[Mr P] only became known to the transition service by way of the referral that was made in 2016; the transition service used to work with those aged 18 and above with a diagnosed learning disability, therefore we would not have known of [Mr P] since he was 17.
- This is demonstrably wrong on three points.
- First, there is no question Mr P had a diagnosed learning disability. The Council’s own note of 29 July 2016, just before the transition referral, said exactly this.
- Second, Mr P was already 18, and in fact nearly 19, when the transition referral was made, not 17.
- Third, even if Mr P had been 17 at that point, the transition process is supposed to facilitate a smooth handover from children to adult services, avoiding a gap in the provision of care and support. For this reason, it should begin well in advance of the person’s 18th birthday.
- It is, therefore, difficult to understand why a person being 17 would mean they were not of interest to the Council’s transition service.
- So it is clear the Council had already failed to properly assess Mr P’s situation as early as August 2015. And its own case notes demonstrate it was aware it needed to assess him, at the latest, by August 2016.
- However, and despite repeated contact from Mrs B, the Council made no progress whatsoever on Mr P’s assessment until November 2018, when it received Mrs B’s survey response. At this point, the DP advisor contacted a social worker and asked for Mr P’s case to be prioritised.
- Then in March 2019, the Council contacted Mrs B to arrange a home visit.
- I cannot see exactly when the home visit took place. But I can see that, even then, it took the Council a further two months to formally complete the assessment. I note, and assume it is not a coincidence, this was after we informed the Council of the Ombudsman’s investigation.
- This brings me to a related point. As I have said, Mr P has an EHC plan. EHC plans should be reviewed at least annually, to ensure any necessary amendments or updates can be incorporated. This might include, for example, the provision of social care, where none was in place previously.
- I asked the Council to provide me a copy of Mr P’s most recent EHC plan. The plan it gave me is dated August 2016. I queried this with the Council, and it initially told me it had not received a request to review the plan from Mr P’s college since then.
- However, Mrs B told me the college had submitted review requests to the Council since the creation of the plan, but it had not responded, nor engaged in the review process.
- I put Mrs B’s comments to the Council, and it confirmed it had received a review request in March 2019, which it would now act upon.
- I cannot say conclusively when the college made previous requests to the Council for a review. This is not the crux of Mr P’s complaint, and so I will not seek to make a formal finding on it.
- However, on the balance of probabilities, I am satisfied with Mrs B’s evidence the Council has failed to engage in the review process since August 2016, despite the college’s requests.
- And this also has significance to Mr P’s complaint about the lack of an adult care assessment. To reiterate, one section of the standard EHC plan is dedicated to social care. In Mr P’s plan from August 2016, there was no provision under this section.
- So, had the Council engaged in the review process, this would have provided another opportunity – or series of opportunities – for it to recognise that Mr P was still waiting for his care assessment.
- In total, Mr P was waiting for an adult care assessment from August 2015 to May 2019, approximately three years and nine months. This is manifestly unacceptable. I cannot speculate exactly why there was such a delay, but it is hard to escape the impression Mr P was simply forgotten about.
- Although, at the time of writing, it is not yet in place, the Council has confirmed it has now assessed Mr P as needing 15 hours per week of support from a personal assistant.
- I cannot say conclusively this means Mr P should have been receiving this level of support from August 2015 onwards. It is possible his needs have changed over time.
- But it does not appear unsafe to conclude Mr P has missed out on a significant support provision, for a very long time, simply because of the Council’s failure to assess him sooner. This is a serious injustice to him.
- I also consider there is an injustice here to Mrs B. The Council’s repeated failure to act on her requests to assess Mr P have clearly caused her great frustration. She has also been put to significant unnecessary time and trouble.
- Within one month of the date of this decision, the Council has agreed to:
- offer to pay Mr P £3000, in recognition of his loss of support since August 2015;
- offer to pay Mrs B £1000, in recognition of her frustration at its failure to act on her requests to assess Mr P; and
- offer to pay Mrs B a further £500, in recognition of the significant time and trouble she has been to pursuing this matter.
- In addition, within two months of the date of this decision, the Council has agreed to undertake a full review of its handling of Mr P’s case. The review should seek to identify the reason why Mr P’s assessment was subject to such a severe delay, and propose measures the Council can take to prevent a recurrence.
- The Council should explain the outcome of its review to the Ombudsman once it is complete.
- I have completed my investigation with a finding of fault causing injustice.
Investigator's decision on behalf of the Ombudsman