Decision : Not upheld
Decision date : 19 Dec 2019
The Ombudsman's final decision:
Summary: Mr B complains the Council has not properly reviewed and increased his care package. Mr B says the Council has failed to appoint an advocate, comply with agreed methods of contact and make interim payments pending a re-assessment. Mr B says this has caused him significant distress and puts his health at risk. The Ombudsman does not find fault in how the Council completed Mr B’s re-assessment.
- The complainant, who I refer to as Mr B, complains the Council delayed in completing a re-assessment of his needs and did not properly assess him. He says he needs an increase in his care hours due to the removal of support from his informal carer. He says the Council has also failed to put in place an independent advocate and made a poor referral to its advocacy service.
- Mr B says the Council should have made interim payments to him while the re-assessment was taking place. He complains the Council has refused to backdate payments to 2015.
- Mr B says the Council has sent him unsolicited communication and on one occasion this led to him breaking his phone and several plates. He complains the Council has refused to pay his invoice for the costs of the damage.
What I have investigated
- I have investigated how the Council communicated with Mr B and reviewed his care needs between 2018 and 2019.
The Ombudsman’s role and powers
- 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)
- 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)
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), 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 considered the information Mr B provided and discussed the complaint with him on the telephone. I also spoke to Mr B’s friend and informal advocate, Ms Y. I then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments.
What I found
Legislation and Guidance
- The Care Act 2014 (“the Act”) sets out the legal framework for adult social care. In line with the Act, councils must assess any adult that appears to have needs for care and support.
- The Act says councils must keep care and support plans regularly under review. Councils should review care plans at least yearly. If the review finds the person’s needs have changed, the council should complete an updated assessment of needs and, if needed, a new care plan.
- Where the person receives direct payments, regulations say councils must review the direct payments at least once a year. This is to check that direct payments are the best way of funding that persons care. They should consider reviewing the support plan and direct payments at the same time.
- The Department for Health and Social Care has produced the Care and support statutory guidance (“the Guidance”), which focuses on the Act. The Guidance says reviews of care plans should include, among other things:
- have the person’s circumstances and/or care and support needs changed?
- what is working in the plan, what is not working and what might need to change?
- is the person’s personal budget enabling them to meet their needs and the outcomes identified in their plan?
- The person would have substantial difficulty being involved in the procedures without an independent advocate; and
- There is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in provided care or treatment to the person.
- Mr B is an adult who is diagnosed with high functioning autism, attention deficit hyperactivity disorder (“ADHD”) and personality disorder. Mr B has received direct payments from the Council for several years. These pay for a personal assistant (“PA”) to support him with his health and wellbeing, housekeeping activities, accessing the community and managing his personal affairs. Mr B’s care plan provides for 12 hours per week of support from his PA. Mr B also previously received informal support from Ms Y, who helped him prepare meals and clean.
- All correspondence between the Council and Mr B went through Ms Y. This is because Mr B often had meltdowns when the Council contacted him directly. For this reason, he removed consent for the Council to contact him directly.
- In 2014 Mr B told the Council he needed an increase in his number of care hours. For the reasons set out at the end of this statement, I have not investigated any historic assessments or decisions the Council has made. I have only investigated actions taking place in 2018 to 2019.
- In June 2018 Ms Y emailed the Council to request a re-assessment. She said the Council had not reassessed Mr B for three years. She said she did not have consent to discuss Mr B’s case and the Council had still not put in place an independent advocate.
- In September 2018, Mr B telephoned the Council asking to arrange a review. The review took place in October 2018. Mr B completed a supported self-assessment. Ms Y and Mr B’s PA attended the review meeting to give their views and details of the support they provided.
- Ms Y said she was no longer able to provide informal support to Mr B. Mr B asked the Council to increase his care package, to account for losing Ms Y’s informal support.
- The Council emailed a copy of the draft assessment to Ms Y. The assessment document included a series of questions, asking Mr B to provide further specific information about his needs.
- Ms Y sent back the draft assessment, with comments and further information from Mr B. Ms Y told the Council she would no longer be able to deal with any communication between the Council and Mr B from 17:30, two days later. On that date, the Council sent an updated assessment document to Ms Y at 17:20. Mrs B responded to say she had not seen the email before 17:30. She said it was inappropriate for the Council to send her the document only 10 minutes before consent was withdrawn for her to receive information about Mr B’s case. She suggested sending the document again through Mr B’s MP. Mr B later made a complaint about this.
- A few days later, in late November 2018, Mr B’s MP wrote to the Council asking it to consider appointing an advocate and give any reasons for a delay in doing so. The Council obtained Mr B’s consent then, in December 2018, made a referral to its independent advocacy service on Mr B’s behalf.
- In late January 2019, the Council chased up the advocacy service. The service said it was not instructed to act for Mr B at this time so could not communicate with the Council or update it about the referral. It said the Council would need to ask Mr B for an update on the current progress. The Council did not contact Mr B directly as Mr B had made it clear it did not have his consent to do so.
- The Council received a complaint from Ms Y in early February 2019. The complaint said Mr B still did not have an updated care and support plan or an independent advocate. It said this was because the Council made an incredibly poor referral to the advocacy service. It did not give any further details about in what way the referral was poor or why Mr B had decided, or not been able to, engage an advocate from the service. Ms Y said the Council should have sent the care and support plan via Mr B’s MP.
- Mr B then contacted the Council directly to complain. He said the advocacy service had contacted him a month before. He asked if the Council was planning on allocating him arbitrarily to this service or if he had a choice. Mr B complained he was going without hot meals due to the Council not completing the re-assessment.
- The Council responded that Mr B did have a choice and provided information about other advocacy services he could contact. The Council asked Mr B to give consent for the advocacy service to share information with the Council about the advocacy referral. Alternatively, for Mr B to give his permission for the Council to contact him directly so it could complete the assessment. Mr B did not give consent for either.
- In March 2019, the Council sent a copy of the re-assessment document to Mr B via his MP. The Council also suggested an alternative advocacy provider. Mr B responded to say he wished to use a different provider. The Council asked for more information to complete that referral. Mr B then said that provider could not assist, and he did not agree to the provider the Council had suggested.
- The re-assessment document showed continued support of 12 hours a week, so no change in the number of care hours from the previous support plan. The Council says it did not find evidence of an increase in Mr B’s needs. It said the hours in the existing care plan were already there to assist with Mr B’s eligible needs, as set out at Paragraph 7. There was no provision for informal support in that care plan. The Council did not have any evidence that his needs had increased, and it believed the already allocated hours were enough to meet his needs.
- Mr B had a telephone call with a social worker from the Council. In this call, Mr B says he gave the social worker tacit consent to discuss his re-assessment, but the social worker declined and kept asking about the advocacy. Mr B said he did not give the social worker consent to talk about the advocacy with him and complained this was a data protection breach.
- Mr B provided comments on the assessment by email in May 2019. He said the support plan showed that Ms Y was still providing informal support. Mr B said the Council knew she had stopped that support and he needed an increase in his care hours to cover this.
- In June 2018, the Council wrote to Mr B to say it would update the section about Ms Y providing support. Mr B responded asking where the replacement of those needs was. The Council said it would update the assessment and be in contact again shortly.
- Mr B and Ms Y then both emailed the Council separately. They said Mr B had suffered a meltdown due to the Council’s correspondence. During this meltdown Mr B smashed his phone and several plates. Mr B sent an invoice to the Council for the cost of replacing these. The Council has declined to pay the invoice. It says it contacted Mr B in response to his comments and did so through the agreed channel of his MP.
- Mr B raised concerns about the conduct and competency of the social worker who completed the assessment and said he would not agree to anything drafted by that social worker.
- Mr B gave the Council permission again to speak to Ms Y about his complaint. The Council suggested a meeting in late July 2019. However, a manager then emailed Mr B to say she had reviewed the assessment and was of the view the Council had enough information to conclude the assessment. She said the Council would send Mr B a copy of the final assessment document and support plan. She recommended a different social worker complete another review in six months.
- In September 2019 the Council wrote to Mr B, setting out how it would go forward. It asked Mr B to give consent for it to refer him to its new advocacy provider. It provided information about other services Mr B could engage. It said another social worker would be available to complete a re-assessment from November 2019. Mr B continues to receive direct payments for 12 hours of support per week.
- Mr B’s correspondence to the Council has regularly contained strong and, at times, abusive language. Mr B says this is due to his condition and the Council must accept this as a reasonable adjustment under the Equality Act. The Council says it must balance this with its duty to protect the wellbeing of its staff and if Mr B’s contact continues to be abusive it may need to consider limiting his contact.
- I do not find fault in how the Council completed Mr B’s re-assessment.
- The Council started the re-assessment in October 2018, shortly after Mr B’s telephone call. For the reasons set out at the end of this statement, I have not investigated whether there were delays in conducting earlier reviews.
- I understand the assessment procedure was not concluded until July 2019. Normally, it is good practice to complete re-assessments within around four to six weeks. However, I can find no evidence the delays in completing this re-assessment were because of fault by the Council.
- The Council completed the draft assessment and sent this to Mr B in a timely way. When it received Mr B’s comments, the social worker again sent the updated document to him in a timely way. Unfortunately, Mr B did not receive this document because Ms Y only received it after the deadline for which her consent to pass information to Mr B had terminated.
- It may be the Council could have then immediately sent the document through Mr B’s MP. However, it was clear at this point that Mr B wished to have an independent advocate appointed. The whole purpose of that advocate would be to act as a go between and support Mr B in responding to the assessment. I therefore do not find fault in the Council’s decision to wait for the appointment of an independent advocate, before continuing to finalise the re-assessment. As soon as it became clear a timely appointment of an advocate was unlikely, it sent the document to Mr B via his MP.
- My findings on the delays in appointing an independent advocate are set out at Paragraphs 50 to 52.
- I understand Mr B disagrees with the outcome of the assessment, but again I can find no fault. It is not my place to question the merits of the Council’s decision, unless there is evidence it has not followed the Guidance when conducting the assessment.
- The Council has completed the re-assessment while considering the factors set out in the Guidance and at Paragraph 13 of this statement. It has clearly recorded Mr B’s views and the views of his carers in the assessment document.
- It has reached the view that there is no evidence of a significant change in Mr B’s needs. The Council has clearly listed what these needs are in the assessment document and how it will meet them. It has set out clearly, why it considers 12 hours of support are enough to meet Mr B’s needs at this time.
- I understand Mr B says his needs have changed because Ms Y is no longer providing informal support. However, the Council has set out that informal support was never a factor in his care plan. It considers the hours set out in his care plan already are enough to meet his eligible needs, regardless of what additional informal support he may have previously received from friends. The Council has set out its professional view on this matter clearly and it is not my place to question that view.
- It is clear all parties agree that the best way forward is for Mr B to have an independent advocate, who can support him in communicating with the Council. The Council has a responsibility to provide an advocate. Mr B remains without one. However, there is no evidence this is because of fault by the Council.
- It is clear the Council has made a referral to an advocacy service. That advocacy service contacted Mr B. Ms Y says the Mr B did not then engage an advocate because he received unexpected contact from the service. She says the Council knows Mr B does not react well to unexpected contact.
- Mr B does not have to engage an advocate from the Council’s service and is free to find an advocate from a service of his choice. The Council has provided Mr B with additional information about other services he may use and how to do so.
- Mr B says the Council’s referral was poor. However, it is not clear how the Council’s telephone referral could have in any way blocked Mr B from engaging an advocate. I understand Mr B finds unexpected contact difficult but given the Council could not contact him or Ms Y directly, the whole point of engaging an advocacy service was to find a suitable go between. Mr B had asked the Council to engage an advocate on his behalf, and knew it could not contact him directly, so it was reasonable for the Council to expect Mr B would be aware an advocacy service would contact him at some point. It was for Mr B to discuss his needs for support with the service. The Council could have supported him to arrange this and work out any problems, but only with his consent. The Council asked for this consent, but Mr B declined. The Council can only fulfil its duty to provide an advocate with Mr B’s consent.
- I do not find the Council at fault for not making interim payments to Mr B. I can see nothing in the Act or Guidance that says councils must make interim payments while an assessment is ongoing.
- After the Council has completed an initial assessment of someone’s needs, the person may request direct payments instead of care arranged by the Council. While the Council is considering this request, it should provide interim payments in line with the Guidance. However, this does not apply to Mr B’s situation. Mr B was already receiving direct payments. The Council did not stop these while it completed the re-assessment. It continued to meet Mr B’s needs in line with the care plan throughout.
- Any increase in direct payments would only take effect after completion of the re-assessment. In some cases, councils might backdate payments to the start of the re-assessment. However, again this does not apply here as the Council has not increased Mr B’s direct payments.
- I do not find fault in the way the Council has communicated with Mr B in general. I understand the nature of Mr B’s conditions can make it difficult for him to communicate with the Council and that he is prone to meltdowns if that communication does not go well. However, I can only consider whether there is fault in the Council’s actions and how it has tried to meet Mr B’s communication needs.
- It is clear from the correspondence I have reviewed that the Council has made concerted efforts to communicate with Mr B in line with his wishes. It sent correspondence via Ms Y when she was acting on Mr B’s behalf and then through the MP when she was not. Mr B has also directly contacted the Council several times asking for specific answers. On each occasion the Council appears to have given honest consideration to whether it should respond directly to him or through Ms Y, or the MP.
- Mr B gives two specific examples of not complying with his communication preferences. The first is the Council sending the assessment document to Ms Y 10 minutes before Ms Y’s consent ended. I understand this would leave little time for Ms Y to see the document and send it on. However, it remains that Ms Y had, until then, been the main point of contact and still had consent when the Council sent the document. I can also understand why it would not have been immediately obvious to the Council how else it was best to deliver the document to Mr B, when it did not have consent to send it to him directly.
- Mrs Y says the Council had previously sent correspondence through the MP and this channel of communication worked well. As above, I acknowledge the Council could have sent the support plan through the MP straight away. However, it remains the Council was focussed on getting an advocate in place to support with the assessment. For the reasons outlined at paragraphs 50 to 53 above, I do not find fault in how the Council made this decision.
- The second example is the incident that led to Mr B damaging his phone and several plates. I can see the Council sent its correspondence via Mr B’s MP, which at this time was the agreed method. Therefore, the Council did respect Mr B’s wishes when sending this email.
- Mr B’s concern appears to be with the contents of the email, rather than the way it was sent. On reviewing the email, I can see no evidence of fault in what the Council said. It was simply updating Mr B on how it would amend the assessment. I understand Mr B did not agree with the assessment conclusion, but I have found no fault with how the assessment took place.
- Even if there were fault, there is no way I could find a link between this and Mr B damaging his property, such as to recommend the Council replace that property.
- I have not found the Council at fault in how it completed Mr B’s re-assessment or met his communication needs.
Parts of the complaint that I did not investigate
- I have not investigated Mr B’s complaint that the Council has not properly assessed his needs going back to 2014. This is because we will only investigate complaints that are brought to us within 12 months. The Council has made recent decisions during 2018 and 2019 about Mr B’s level of care. These decisions have not led to a change in his care package. It would therefore not be proportionate for me to exercise discretion to investigate whether the Council completed timely reviews in the past.
- I have also not investigated whether the Council should have made an earlier referral to an independent advocate. This is because, within the timeframe of my investigation, the Council has referred the Mr B to an independent advocacy service and provided information on other services. I have not found fault in how it did so. Again, it would therefore not be proportionate for me to investigate the wider timeframe.
- I have not investigated Mr B’s complaints about data protection breaches or delays in responding to a subject access request. The Information Commissioner is best placed to consider any complaints of this nature.
Investigator's decision on behalf of the Ombudsman