Decision : Upheld
Decision date : 01 Jul 2020
The Ombudsman's final decision:
Summary: The Council accused Mrs X of using offensive words to an officer when it had no evidence to support this. The Council stopped Care Act assessments on Mrs X and her husband when it should not have done. The Council caused distress to Mrs X. The Council caused a two-month delay in its assessment of Mrs X and her husband. To put this right the Council has agreed to apologise and pay them a total of £450 for the distress and delay.
- Mrs X complains the Council wrongly accused her of being abusive to officers. She says because of the false allegations the Council refused to carry out Care Act assessments for her and her husband.
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
- A colleague spoke to Mrs X. I considered the information provided by Mrs X which included the Council’s responses to her.
- Mrs X and the Council had the opportunity to comment on a draft version of my decision. I considered any comments before I made a final decision.
What I found
The Care Act 2014
- Sections 9 and 10 of the Act 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 Act gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer).
The Council’s Adult Social Care complaints policy
- The policy says a senior manager will investigate a complaint and reply within 15 working days.
- Mrs X and her husband (Mr Y) have had a lot of contact with the Council. They have young children and both have physical health problems. Mr Y is a wheelchair user and has mental health problems.
- On 8 July 2019 Mrs X asked the Council to carry out Care Act assessments for her and her husband.
- On 11 July an Assessment Officer telephoned Mrs X. Another Officer then telephoned Mrs X. Mrs X said she would make a complaint.
- On 12 July a Complaints Officer emailed Mrs X. This Officer said an Assessor had contacted Mrs X and there had been misunderstandings between Mrs X and the Assessor. The Officer said she has asked Assessment to send Mrs X a response and the outcome of the assessment.
- Mrs X replied immediately. She said the Assessor did not say she was an Assessor and refused to carry out an assessment. Mrs X said she asked the Assessor to make appointments for the assessment and she refused. Mrs X said it was essential the Council assessed her and her husband. She wondered how the Council could make a decision without an assessment.
- The Council replied on 16 July. It said the first caller had introduced herself as an Assessor. It said Mrs X had explained her and Mr Y’s needs but said she wanted a home visit. It said the Assessor explained the Council did all assessments by telephone. It said it only arranged a home visit if the Council thought this was necessary and if the person was eligible for services.
- The Council says Mrs X raised her voice and with another person with her called the Assessor a monkey, a slave and a zombie who only listened to managers. It said Mrs X then said she would complain and ended the call. It said it had closed her assessment as she had refused to participate. It said it had carried out an assessment of Mr Y in May. It said it has closed this assessment as Mr Y was not eligible for services.
- Mrs X replied to deny the allegations made against her. She asked for a transcript of the call and proof the Council told her the telephone call of 11 July was an assessment.
- Mrs X also make a data access request for the recording and transcripts of the telephone calls of 11 July. The Council replied it did not record calls and did not have any transcripts of her conversations.
- On 31 July Mrs X emailed a complaint to the Council. She wanted to know why the Council had not assessed her. She wanted to know why it accused her of not cooperating with the assessment. She asked if there was anything she had refused to tell the Assessor. Mainly she denied calling the Assessor the names attributed to her. She said she wanted evidence of this as she believed the Council was backing what the Assessor said just because she was a council officer.
- The Council replied on 11 September. It apologised for the delay. It said Mrs X had not cooperated with the assessment because she ended the telephone call. It said it would now arrange an assessment for her and husband at their home. It said there was no documentary evidence Mrs X had used offensive words to the Assessor. It said as it could not substantiate this, it should not have referred to it in its first letter. It apologised for this.
- The Council assessed Mrs X and Mr Y in September 2019.
- Mrs X says she would never use the indirectly racist language attributed to her. She said the accusation humiliated her and caused her deep distress. She wants the Council to amend its records.
- The Council delayed in responding to Mrs X’s complaint. It has already apologised for this.
- The Council accepts it should not have accused Mrs X of using offensive words when it had no evidence to support this. The Council has apologised for this. It has not addressed the distress it caused Mrs X.
- The Council says it has no record from 11 July of what it alleged Mrs X said. The record it has is its letter of 16 July to Mrs X making the allegations. The Council has accepted in writing it should not have this. Therefore, the Council has already amended its records.
- The Council has a duty to carry out Care Act assessments. The Council is at fault for stopping its assessments of Mrs X and Mr Y.
- The Council stopped its assessment of Mrs X as it said she refused to participate. As the Council has not kept a record of the telephone calls with Mrs X on 11 July, I cannot know who said what. The Council at first said there was a misunderstanding. This appears correct. The email Mrs X sent on 12 July says she did not realise this was an assessment and believed the Assessor was refusing to carry out an assessment. Mrs X was clear she still wanted an assessment.
- The Council should not have stopped its assessment of Mrs X. That it did so was fault. The Council started the assessment again in September. This delay of two months caused Mrs X injustice, as she had to wait longer the necessary for the Council to assess her needs and potentially meet them.
- The Council said it closed Mr Y’s assessment because he was not eligible for services. The Council has a duty to carry out an assessment and provide a care plan regardless of eligibility for services. The Council was at fault for ending the assessment. The Council started the assessment again in September. The delay of two months caused Mrs X and Mr Y injustice. They had to wait longer than necessary for the Council to identify Mr Y’s needs.
- To put matters right for Mrs X and Mr Y, the Council has agreed that within a month of my final decision it will:
- Apologise to Mrs X and Mr Y for the delays in their assessments.
- Pay Mrs X £150 for accusing her of using offensive terms when it had no evidence to substantiate this.
- Pay Mrs X and Mr Y £150 each for the delay in their assessments.
- The Council is at fault and has caused injustice to Mrs X and Mr Y. The Council has accepted my recommendations for a remedy for this. I have completed my investigation and closed the complaint.
Investigator's decision on behalf of the Ombudsman