Decision : Upheld
Decision date : 08 Jan 2020
The Ombudsman's final decision:
Summary: The Council failed to ensure that Ms B had continuity of care when she moved to Cornwall and this was fault. The Council also did not write to Ms B to explain how it decided to reduce Ms B’s care package by 13 hours and gave conflicting information about what she could use the direct payments for. The Council has agreed to apologise to Ms B, repay her for the missed provision, pay her £300, write to Ms B to explain the reduction in the care plan and review the assessment and care plan.
- Ms B said the Council:
- Failed to follow the legislation and guidance to provide continuity of care when she moved from one council to another.
- Delayed the assessment process and the provision of support.
- Failed to properly assess her needs in line with the Care Act and provide a care plan which met her needs. The Council has not provided a written explanation for its reduction in the support it offered.
- Breached the Data Protection Act 2018 and shared information about her and her daughter without her consent.
What I have investigated
- I have investigated Ms B’s complaints apart from the complaint about the sharing of information. Paragraph 77 explains why I have not investigated that 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)
- The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
- 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 discussed the complaint with Ms B. I have considered the documents that she and the Council have sent, the relevant law, guidance and the Council’s policies and both sides’ comments on the draft decision.
What I found
Law and guidance
Duty to assess
- The Care Act 2014, the Care and Support (Continuity of Care) Regulations 2014 and the Care and support statutory guidance set out councils’ duties.
- Councils have a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the cost of the services.
Threshold for eligibility
- The threshold for eligibility is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Council must consider whether:
- The adult’s needs arise from a physical or mental impairment or illness.
- As a result of the adult’s needs, the adult is unable to achieve 2 or more of the specified outcomes.
- As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
- Managing and maintaining nutrition.
- Maintaining personal hygiene.
- Managing toilet needs.
- Being appropriately clothed.
- Being able to make use of the home safely.
- Maintaining a habitable home environment.
- Developing and maintaining family or other personal relationships.
- Making use of necessary facilities or services in the local community.
- Accessing and engaging in work, training or education.
- Carrying out any caring responsibilities the adult has for a child.
Preparation of the care plan
- There is no defined timescale for the completion of the care and support planning process, but the guidance says the plan should be completed in a timely fashion, proportionate to the needs to be met.
Disagreement about the care plan
- The guidance says local authorities must take reasonable steps to reach agreement with the person for whom the plan is being prepared.
- If the plan cannot be agreed, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. The local authority should direct the person to the local complaints procedure.
Review of the care plan
- Councils are expected to review the care plan at least every 12 months and should consider a light touch review of the plan after 6 to 8 weeks after the initial sign off.
- A person can ask to receive direct payments to arrange the care and support themselves and councils must provide this if certain conditions are met.
- Councils can terminate direct payments against the person’s wishes in exceptional circumstances. Examples are when the person has lost the mental capacity to make decisions about their finances or when the direct payments have not been used in line with the care plan. The guidance says that, before direct payments are stopped, the council will need to carry out a review of the care plan and agree alternative care and support provision with the person. The council should also give notice.
Continuity of care
- The Act and the guidance explain what councils should do when a person moves from one authority (the first authority which is meeting the person’s needs) to a second authority. The aim of the legislation is for service users to have continuity of care when they move.
- These are the requirements relevant to Ms B’s complaint:
- The process starts when the second authority receives notification of the adult’s intention to move. The authority must assure itself that the person’s intention is genuine as the duties in the Act flow from that point.
- If the second authority has assured itself that the adult’s intentions are genuine, it must inform the first authority. Both authorities must identify a named staff member to lead on the case and be the ongoing contact during the move. They should both make themselves known to the person and lead on sharing information.
- The first authority must give the second authority a copy of the care plan and any other information the second authority may ask for.
- The second authority must complete a needs assessment.
- The second authority’s assessment must consider whether any preventative services or advice and information would help either person meet those outcomes. The assessments should also consider the individual’s own strengths and capabilities and whether support might be available from family, friends or within the new community to achieve their outcomes. In carrying out the assessments, the second authority must take into account the previous care and support plan which has been provided by the first authority.
- If the second authority’s needs assessment or the cost of meeting the needs is different from the first authority’s care plan, the second authority must provide a written explanation of the difference.
- Meet the needs for care and support that the first authority has been meeting.
- In meeting the needs, it must take into account the outcomes identified in the adult’s current care and support plan until it has carried out its own assessment.
- In deciding how to meet the needs, the Council should involve the person and their carer. The Council should take all reasonable steps to reach agreement with the person.
- These arrangements must be in place on the day of the move and continue until the second authority has carried out its own assessment and put in place a care and support plan which has been developed with the person.
- Where there has been a delay in the move because of unforeseen circumstances, both authorities should maintain contact with the person to ensure that arrangements are in place for the new date of the move.
- Ms B has physical and mental health conditions which have an impact on her ability to achieve the outcomes as defined in the Care Act. Her conditions fluctuate so the support that she needs is not always the same.
- Ms B was living in council D which provided her with a care package of up to 42 hours of support a week. Ms B received direct payments to pay for personal assistants. Ms B’s daughter lived in Cornwall and was a professional carer. The plan was for the daughter to provide the care initially and to assist in hiring new personal assistants following the move.
- Council’s D’s needs assessment of Ms B dated 17 March 2016 said Ms B needed help in:
- Maintaining nutrition – always needed help, every two to three hours.
- Toileting – always needed help, every two to three hours.
- Maintaining personal hygiene – always needed help, once a day.
- Getting dressed/undressed – always needed help.
- Staying safe at home. Ms B always needed someone present at home during the day, but used an alert system at night. When she had a bad episode, she needed 24 hours support.
- Maintaining a habitable home – always needed help.
- Maintaining personal relationships – daily support at five activities a week.
- Accessing the community – always needed help. Ms B was only able to access the community if accompanied by another person.
- She offered Ms B direct support from an agency, in the interim, until the Council had completed its own assessment and care plan. This support was offered to support Ms B’s daughter in her role as carer. Ms B declined this offer.
- She urged Ms B to register with a GP in Cornwall. This would mean she could access local mental health services and join a local support group.
- She informed Ms B she would be on leave for three weeks and made another appointment for 6 September 2017.
- Contacted council D as she wanted to check if the March 2016 documents were the most recent documents. She also wanted to speak to the previous social worker to discuss the care needs further.
- Tried to obtain Ms B’s medical records from her GP in council D.
- Referred Ms B for an assessment by an occupational therapist. This should give more information on how Ms B’s needs fluctuated and assess whether any equipment could be put in place to promote her independence at home.
- Maintaining nutrition – sometimes needed help.
- Maintaining personal hygiene – always needed help. Ms B said she could carry out personal hygiene tasks during a good episode, but needed someone to be present in the property because of a risk of falls.
- Toileting – sometimes needed help. She could manage her own toileting needs during a ‘good episode’, but not during a ‘bad episode.’
- Getting dressed/undressed – always needed help.
- Being able to make use of the home safely – sometimes needed help. During a ‘good episode’ Ms B could walk unaided indoors using furniture and walls to help her balance. She could transfer from her bed, toilet and armchair independently. She could access the different rooms and the outdoors. When she had a ‘bad episode’, she needed support from other people.
- Maintaining a habitable home – always needed help.
- Maintaining personal relationships – sometimes needed help
- Accessing the community – sometimes needed help.
- Assistive technology to improve her independence at home. This was stopped after the 6 weeks free trial period as Ms B was not able to pay the £25 a month fee.
- Suggestion of pre-prepared meals or meal delivery service to assist in nutrition. Ms B declined this offer as she said she had food allergies and intolerances which these services could not cater for.
- The Occupational therapist provided Ms B with a perching stool and a walking stick.
- Ms B complained to the Council on 30 November 2018 and the Council replied on 9 January 2019 and did not uphold her complaint.
- Ms B complains about the delay in carrying out the assessments and the delay in putting in place support. Although the two matters are linked, I will address them separately.
Delay in the assessment
- Ms B says the Council should not have closed her case when there was a delay in her move to Cornwall. The Council says it closed the case after the social worker spoke to Ms B in June as Ms B had still not moved.
- The Guidance says that if there is a delay in the move because of unforeseen circumstances, both authorities should maintain contact with the person to ensure that arrangements are in place for the new date of the move. The guidance is silent on whether the case should remain open or not on the Council’s systems.
- In this particular case, I do not think that the fact that the case was closed on 21 June 2017 but reopened on 10 July 2017, made any difference. Even if the case had been open during that time, there is no indication that the Council would have taken any further action as it was waiting to hear from Ms B. The problems stem from the Council’s failure to start paying direct payments in August (see below).
- Ms B complains about the delays in her assessment and the start of the support. I agree it took a very long time, from July 2017 until January 2018 for the Council to start supporting Ms B, but the question is whether the delay was the Council’s fault.
- I note that some of the meetings were cancelled because the social worker or Ms B were ill and because the social worker was on leave for three weeks. There were also occasions when it was difficult to find a date when everybody was able to attend. Although these things were unfortunate, I would not say they were ‘fault’ by the Council.
- Some of the delay was caused by the fact that the social worker was waiting for information from other agencies. Ms B is of the view that this delay should have been avoided as the information was not needed. I have considered that in further detail.
- Some of the delay was caused by the delay in obtaining Ms B’s medical records. I have not investigated Ms B’s complaint about the consent to see this information as Ms B can refer this complaint to the ICO. I have considered whether there is any fault in the principle of the social worker considering medical information as part of the assessment. Ms B says this was not needed as her GP had sent in a letter of support.
- I find no fault as it was information that was relevant to the assessment the social worker was carrying out. Ms B’s needs arose as the result of underlying medical conditions, some of which were complex and the social worker wanted as much information as possible to understand the conditions.
- Ms B also questions the second reason for the delay which was that the social worker contacted council D to confirm that the documents were up to date and to discuss Ms B’s case further.
- I find no evidence of fault in this. The care plan was dated March 2016 which suggested there may have been a March 2017 plan as councils should carry out yearly reviews. In any event, there would be no fault in the social worker trying to obtain as much information as possible from the previous council.
- Another reason for the delay was the input from the occupational therapist. I find no fault in the social worker’s decision to seek the occupational therapist’s opinion. The social worker was acting in line with the Care Act by providing a multi-agency approach, particularly in a case such as Ms B’s which was complex. The social worker also wanted to find out whether there was any equipment or adaptations that could be provided to Ms B which would increase her independence at home, which was in line with the Care Act.
- However, I agree with Ms B that some of the delay was the Council’s fault, particularly after 1 November 2017. The Council had finished the care plan but there are no clear reasons why it then took the Council until January 2018 to start making the direct payments.
Delay in the provision of support
- There was fault in the Council’s failure to provide support to Ms B as soon as the Council knew that Ms B had moved to Cornwall.
- The guidance says the Council should have continued to meet the needs for care and support that council D had identified in its assessment and had been meeting. These arrangements should be in place on the day of the move and continue until the second authority has carried out its own assessment. My reading of the guidance is therefore that the Council cannot significantly change the care plan until it has carried out its own needs assessment.
- Council D provided Ms B with 42 hours of support per week, via direct payments. This is what the Council should have put in place. The Council changed this to an offer of direct support from an agency. I asked the Council why it took away the direct payments and it could not give an explanation.
- The offer of direct support was not in line with the Guidance and the continuity of support the Council was meant to provide. There was no reason why the direct payments were stopped. There was no indication that Ms B had misused the direct payments in any way therefore she was entitled to direct payments if this was her preferred method.
- More importantly, there were clear indicators that a direct service was not suitable for Ms B’s needs. Ms B had fluctuating needs which meant that, on some days she needed more support than on other days. It was difficult for agencies to offer this level of flexibility which was why Ms B relied on personal assistants who she paid by direct payments. Secondly, Ms B had mental health problems and had suffered a traumatic past which meant that she could not have strangers/different carers providing her care. Finally, Ms B’s daughter was already providing the support so the package of support was in place and she was entitled to payment.
- The injustice on Ms B was significant, particularly as it took so long for the Council to complete the assessments and start the payments (see above). Once council D stopped paying for support in August 2017, Ms B was without any council support until January 2018.
- Fortunately, Ms B’s daughter continued to provide support, but without the appropriate payment. Ms B says it was never the intention that her daughter would be her sole carer. Her daughter was forced into this role but this was difficult for her as she had her own family commitments.
- I note the Council has repaid Ms B for the support she missed from August 2017 until January 2018, but it has only repaid her 29 hours, in line with its own care plan, not with council D’s care plan.
- I am of the view that this is not a sufficient remedy. The Council should have been paying the 42 hours from the outset and should have continued to do so until it had carried out its own assessment and started to pay for its own support package.
- I therefore recommend the Council pays Ms B the extra 13 hours it should have paid her from August 2017 to January 2018 as well as a payment of £300 to reflect the distress that she and her daughter suffered from the Council’s failure to put in place the correct package from the outset.
- Ms B complains that the Council’s reduction in her care plan is wrong and the care plan does not meet her needs. She does not understand why the Council did not continue council D’s care plan. She questions why the Council carried out its own assessment and obtained further medical information, OT reports and so on. She feels the Council is ignoring 17 years of knowledge by council D.
- I find no fault in the Council’s decision to re-assess Ms B as this was in line with the legislation and guidance. I have already explained that there was no fault in the Council obtaining an OT assessment and medical information. The Council was not bound by council D’s previous needs assessment or care plan but had to take them into consideration. However, it could come to a different conclusion about the extent of Ms B’s needs or the support that she needed.
- I have explained to Ms B that the Ombudsman cannot say what her care plan should be, therefore my investigation into this part of the complaint is limited. Only the Council can decide the care plan, based on its assessment of Ms B’s needs. My investigation has focussed on whether the Council has followed the correct legislation, guidance and its own policies in carrying out the assessment.
- The Council’s assessment of Ms B’s needs goes through each statutory outcome as set out in the guidance. Council D’s social worker said Ms B needed help ‘all the time’ to achieve eight of the outcomes. Cornwall’s social worker explains the fluctuations of Ms B’s condition and the impact this has on her ability to achieve the outcomes. The social worker is of the view that Ms B can do more things independently on days when she has a ‘good episode’. Therefore, she concluded that Ms B ‘always’ needed help to achieve three of the outcomes set out in the Guidance and ‘sometimes’ needed help to achieve five of the outcomes.
- The Council has a different opinion of how extensive Ms B’s needs are and this is the basis of its reduction in the provision.
- However, the guidance says that, if there is a reduction in the support following an assessment by the second authority compared to the support by the first authority, then the second authority must provide a written explanation on how it has reached that decision. The Council has failed to do so and this is fault.
- There is no explanation on how the Council arrived at the figure of 29 hours or the reduction in support of 13 hours and this is fault. I appreciate that Ms B has fluctuating needs so it is more difficult to allocate hours to outcomes and I also appreciate that there was no explanation in council D’s care plan on how it arrived at the figure of 42 hours.
- However, as the Council is reducing the support it must have prepared a calculation on how many hours Ms B spends on average over a certain period on the support to meet her needs/outcomes. It must have some justification for the figures it arrived at and it should have written to Ms B to explain this in detail.
- There is also fault in the Council’s failure to explain its position relating to night care. The plan said Ms B was allowed 3 x 10 hours night support as an emergency only. In its response to Ms B’s complaint the Council said this was ‘for emergency support only, not routine’. Therefore, Ms B thought she was only allowed 30 hours nighttime support a year which she said was not sufficient.
- In its response to the Ombudsman the Council seemed to suggest that Ms B could use her direct payments for night-time support as frequently as she wanted which was different from its previous position. The Council should make it clear in the care plan whether Ms B can use her direct payments for night support or not.
- There is also fault in the Council’s failure to review the care plan after 6 weeks / 3 months. The Council said in the assessment in November 2017 that it would review the assessment, but failed to do so. This would be good practice in any case but was particularly important in a case such as this one where Ms B and the Council disagreed about the care plan.
- The Council has agreed to take the following actions within two months of the final decision. The Council will:
- Apologise to Ms B in writing acknowledging the fault.
- Pay Ms B the equivalent of 13 hours support from 17 August 2017 until 17 January 2018.
- Pay Ms B £300 to reflect the distress she suffered from the Council’s failure to ensure continuity of care when she moved to Cornwall.
- Write a letter to Ms B to explain how it arrived at the figure of 29 hours in her care plan / the reduction of 13 hours.
- Carry out a review of the assessment of Ms B’s needs and its care plan.
- Ensure that the social workers are aware of the statutory guidance relating to continuity of care.
- I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.
Parts of the complaint that I did not investigate
- Ms B complains that the Council has asked for and disclosed personal information about her and her daughter to outside agencies. I will not investigate this complaint as the Information Commissioner’s Office is ideally placed to investigate this type of complaint and Ms B can direct this complaint to them.
Investigator's decision on behalf of the Ombudsman