Decision : Upheld
Decision date : 27 Jan 2020
The Ombudsman's final decision:
Summary: Mr X complained about the Council’s failure to provide care and support following the withdrawal of his existing carers. He also complained about the subsequent reduction of his care and support package. This caused distress and inconvenience to both Mr X and his family, including his sister, Mrs D. The Ombudsman has found the Council to be at fault when it did not find a replacement care provider. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Mr X and Mrs D. The Ombudsman has not found fault with the outcome of the recent assessment. The number of care hours is a matter of professional judgement for the Council to determine.
- Mr X complains that:
- the Council did not provide adequate care and support following the resignation of his care provider in November 2017;
- the Council’s subsequent care assessment and support plan failed to recognise the role played by his family and generally overestimated his abilities;
- the Council took too long to carry out the assessment;
- the Council has provided poor customer care and service throughout; and
- the Council did not offer Mrs D any support in her role as a carer.
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
- As part of my investigation I have:
- considered the complaint and documents provided by Mrs D;
- made enquiries of the Council and considered its response;
- considered the relevant law and statutory guidance;
- sent a draft version of this decision to both parties and invited comments on it; and
- considered the comments received before reaching my final decision.
What I found
Law and policy
- The Care Act 2014 (“the Act”) sets out local authorities’ duties in relation to assessing people’s needs and their eligibility for publicly funded care and support. Under the Act, 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)
- Eligibility determination must be made after the needs assessment.
- The Act gives local authorities a legal responsibility to provide a care and support plan. 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.
- The personal budget must always be an amount enough to meet the person’s eligible care and support needs. It can be administered by the council, by a third party, or as a direct payment.
- The council should carry out a carer’s assessment where a person is caring for another person with care needs. This follows a similar approach to the need’s assessment discussed above.
- Mr X is learning disabled and until November 2017 was supported to live independently with a care package arranged by the Council. He received 7 hours of support per week to help with daily living tasks such as cooking and shopping. In November 2017, the private care agency that provided this care resigned.
- Instead of finding a replacement care agency, the Council decided to instruct its inhouse Reablement Team (“Reablement”) to observe Mr X, pending a reassessment of Mr X’s care needs.
- The purpose of the Reablement was to provide information to feed into the assessment. The case notes record a reablement worker attended on six mornings over a 3 weeks period for 30 minutes per visit. The worker reported that Mr X had already done his cleaning and only prompting was required. More observation work took place around shopping
- Mr X’s social worker (Mrs P) carried out the assessment on 4 January 2018. Mrs X’s mother was present. This assessment was the subject of a much later complaint by Mrs D. Mr X’s mothers said the assessment was carried out in an intimidating and unprofessional manner.
- The written assessment was completed in 1 March 2018. The Council made a decision on his level of support in August 2018.
- The outcome of the assessment was that Mr X’s care needs could be met by way of 2.5 hours of support per week.
- Mr X’s previous assessment had identified five areas of eligible support. This had been reduced to two areas.
- Mrs D strongly objected to this reduction in support and complained. She said the only reason her brother was coping was because of the support his family provided in lieu of the formal support previously arranged by the Council. She attended a meeting with Mrs P’s manager to dispute the outcome. Mrs D said this was adjourned due to the manager’s conduct.
- In October 2018, in response, the Council agreed to commission Reablement again and assign a different social worker to carry out another needs assessment.
- Reablement visits took place in December and January 2019. Mrs D complained about the process generally and the delay.
- A complaint meeting was held on 4 April 2019 attended by Mrs D and the service manager. As well as raising her concerns about the assessment process and inadequate support hours, she asked the Council to reimburse her costs for the care that she had been providing in the interim.
- In its complaint response, while the Council apologised for the delay in reassigning a social worker, it failed to address the issue of reimbursement.
- This assessment was completed in April 2019. The proposed level of support was 3.5 hours per week.
- Although Mrs D agreed with the assessment of needs, she said the support hours remained inadequate. She said five hours would be acceptable.
- A stalemate arose resulting in Mrs D bringing the complaint to the Ombudsman. In the meantime, Mr X has remained without any formal support since November 2017.
- Mrs D says she has been supporting Mr D to live independently since November 2017. She says she has received no support in her role as a carer during this time. This has had a significant impact on her personal life.
What the Council said
- In response to the Ombudsman’s enquiries, the Council made the following points:
- Mr X could have been offered a replacement care service instead of Reablement in November 2017, but this was not requested by the family.
- 2.5 hours of support could have been put in place alongside Reablement. The Council says this was rejected by the family.
- The Council’s observations of Mr X during its two periods of Reablement could be met within 3.5 hours for reasons that have been explained to Mrs D both verbally and in writing.
- In January 2018, Mrs D was offered a carer’s assessment, but she refused. this.
- If a person has eligible needs, councils have a legal duty to meet them. This does not mean a council must meet a person’s wants. Wants and needs are different. This is sometimes a tricky area, because service users and councils may disagree about what is a want and what is a need.
- It is not the Ombudsman’s role to say what a person’s needs are, or what services they should receive. The Ombudsman’s role is to consider if a council has followed the correct process to assess a person’s needs and to decide how those needs should be met. In doing so we look at what information the council considered. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user or their relative disagrees with its decision, or outcome of an assessment or support plan.
- With this is mind, I will consider each of Mr X’s separate complaints.
The Council did not provide any care and support following the resignation of his care provider in November 2017
- In its response to the Ombudsman the Council has acknowledged it could (my emphasis) have offered a replacement care service.
- But the Council should (again, my emphasis) have put in place a like for like service to support Mr X pending the reassessment. At that time, he was assessed as needing 7 hours of support and so the Council was duty bound to provide this.
- The records show Reablement attended Mr X ‘s property for two thirty minute visits, twice a week, over three weeks. As the purpose was mainly to observe Mr X in order to provide information for the assessment, this was not a replacement service. This meant that from November 2017, Mr X went from receiving 7 hours of formal support to effectively none. Mrs D says it was his family who stepped in to support him instead. The care assessments clearly support this because there are several references to support provided by the family.
- Any reduction in support should only take place after a reassessment of care needs has taken place and the support plan confirmed. The proposed level of support was not confirmed until August 2018. The Council should have provided the original support hours until then. Failure to provide this support was fault that caused Mr X and Mrs D an injustice.
- To Mrs D’s credit, she clearly made sure adequate arrangements were in place to ensure this impact on Mr X was kept to a minimum. But I cannot see the overnight withdrawal of formal support would not have had some adverse effect on Mr X, in terms of a change to his routine and having to manage areas of his life that he needed support in. This is injustice.
- Following on from this, I must then decide whether the Council should be held responsible for the lack of formal care after August 2018 when it proposed 2.5 hours of support. The Council says this did not happen because it was “not accepted by the family”. The case records show this was actually offered to Mrs D in October 2018. While the response to this offer is not recorded, because Mrs D pursued her complaint, on balance, I am satisfied this offer was refused by her. By making this offer, the Council had partially fulfilled its duties to meet Mr X’s needs as they had been assessed at that time. This is reflected in my proposed remedy below.
The Council’s subsequent care assessment and support plan failed to recognise the role played by his family and generally overestimated his abilities
- Since the care agency resigned, the Council carried out two assessments. The Council carried out the second one because Mrs D complained about the manner the first one was conducted and its content.
- It has not been possible for me to determine whether this was done because the Council recognised there was a deficiency in the first assessment or in a conciliatory attempt to move the case forward.
- Mrs D has also lost confidence in the support planning process. She says there is no clear rationale for its decisions about the amount of support available for Mr X.
- The case records show the number of hours offered to Mr X changed throughout the process. To illustrate this point, I have set out a summary of the hours offered by the Council
- July 2018: 4.5 – 5 hours (this was the starting point that was rejected by senior officers)
- August 2018: 2.5 hours
- September 2018: 3 hours
- May 2018: 3.5 hours
- The law allows for councils to reduce the number of support hours as long as it is done properly. The starting point or 4.5 – 5 hours was the initial starting point for discussions. Mr D was told this was subject to approval by the finding panel so I cannot criticise the Council for the subsequent reduction to 2.5 hours.
- The law says people should be given an indicative budget at the start of care planning; this is adjusted when it becomes clear how the needs will be best met.
- So, the 2.5 hours offered in August 2018 was essentially a proposal. Having listened to the concerns expressed by Mr D the Council increased the number of hours in September 2018. This 2.5 hours reflected the fact the assessment had reduced the number of areas of eligible support.
- Mrs D fundamentally disagreed with this assessment and so the Council agreed to carry out a fresh assessment.
- The second assessment was different in that an additional area of eligible need was confirmed (“maintaining personal hygiene”). There is no evidence that Mr X’s need had changed during this time, so the conclusion must be that the first assessment, and resulting offer of 2.5 support hours, were both wrong. This is fault.
- The records show that Mrs D was generally satisfied with this second reassessment of need.
- Mrs D was told verbally that the assessment had created a support plan of 3.5 hours per week. I have not been provided with a copy of any draft support plans, but I have relied on the notes from the meeting in which the social worker explained her rationale. The Council has also provided with the Ombudsman with an explanation that will be shared with Mrs D. I am satisfied that the correct process had been followed here. While councils are obliged to consult with service users and their families about the level of support, ultimately, the decision rests with the Council, not Mrs D.
- It is not the role of the Ombudsman to interfere with this decision. There is no fault here.
The Council took too long to carry out the assessment
- In reaching my decision I have considered the timeline of events.
- The care agency left in November 2017 and the reassessment was completed in January 2018. This was an acceptable timescale considering the Council required input from Reablement. But it then took until August 2018 to confirm the proposed support hours arising from this assessment. This is too long as is fault.
- The Council agreed to reassess in October 2018, but this did not take place until the following April. Again, this is too long and is fault. The impact of this delay was compounded by the Council’s failure to continue to provide a service.
The social work staff were rude and unprofessional, and communication was poor throughout
- Mrs D has complained about the conduct of social workers during meetings and generally poor communication throughout.
- In response to both the Ombudsman’s enquiries and Mrs D’s complaint, the Council said the following:
- There is no evidence to support Mrs D’s assertion that Mrs P was unprofessional and intimidating during the first assessment, nor that of other social workers complained about. There was no complaint at the time but was made many months later.
- The Council accepted a meeting was held in an inappropriate venue.
- In reaching my decision, I have considered the social care records and can find no evidence that the social workers’ conduct was unprofessional during meetings. But I would not necessarily expect to see such evidence. The Ombudsman makes decisions on the balance of probabilities. In this complaint the issues relate to one person’s word against another. As I am unable to prefer one account over another, I am unable to make a finding on this part of the complaint.
- In respect of the complaint about poor communication generally, again I have carefully read the case notes. There are a number of examples of emails that required chasing from Mrs D, particularly during the long delays when nothing seemed to be happening. But I have also seen evidence of timely and informative responses to Mrs D’s questions and requests for further information.
- On balance, despite evidence of some good communication, because the records show Mrs D had to chase the Council on a number of occasions and the failure by the service manager to respond to an area of complaint, I have found some fault with communication in this case.
Failure to recognise Mrs D as a carer and offer appropriate support
- In response to my enquiry about this the Council said a carer’s assessment was offered to Mrs D at the January 2018 assessment. There is no evidence of this within the case records I have seen. The care assessment states, “there are no people providing a high level of support”. Only if there were such persons would a carer’s assessment be offered (according to the prompt on the form).
- From this, on balance I have concluded that the Council did not offer a carer’s assessment to any family member, including Mrs D. As the family, in particular Mrs D, were filling the gap left by the Council’s failure to provide a replacement care service for many months, it is highly likely that she was providing a high level of support that would trigger a carer’s assessment. I cannot say whether this would have then led to services being offered, but it may have. This is fault.
- To remedy the injustice caused by the faults identified in this decision, the Council has agreed to take the following action within four weeks from the date of my final decision.
- Apologise in writing to Mr X and Mrs D.
- Pay Mr X and Mrs D £1000 each as symbolic payments to acknowledge the time between November 2017 and October 2018 when he was left without a service and no updated support plan and Mrs D was responsible for supporting Mr X with no carer’s assessment having been offered.
- Pay Mr X and Mrs D and further £350 each, again as symbolic payments to recognise the time he was left without a service between October 2018 and May 2019 when the final offer of 3.5 hours of support was offered and refused by Mrs D. In making this recommendation I have taken into consideration a reduced level of service was made available but refused.
- These payments also acknowledge the delay in completing the assessment and support plan, the fault with communication and the time and trouble incurred by Mrs D in making the complaint.
- Provide Mr X with a written support plan and make arrangements to provide this care if still wanted by him.
- Reflect on the issues raised in this decision statement and identify any areas of service improvement. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems not reoccur. This report should be sent to the Ombudsman.
- The Council was at fault when it failed to provide substitute care for Mr X when his care provider resigned and other related matters that caused injustice and require a remedy.
Investigator's decision on behalf of the Ombudsman