Summary: Mrs X complains the Council has failed to assess her needs properly, by deciding she no longer has eligible care needs and removing her personal budget. There are flaws with the Council’s assessment. It needs to offer Mrs X a further assessment.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to assess her needs properly, by deciding she no longer has eligible care needs and removing her personal budget.

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The Ombudsman’s role and powers

2. 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)
3. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mrs X and her MP;
• discussed the complaint with Mrs X;
• considered the comments and documents the Council has provided in response to our enquiries; and
• shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

5. Mrs X has polymyalgia rheumatoid arthritis which affects her hands, shoulders, arms, knees and feet. She received direct payments from the Council for over 10 years, which she used to pay people to meet her care needs. After her Personal Assistant retired, Mrs X used two care agencies to provide carers twice a day to meet her needs, Care Agency A and Care Agency B which provided carers every alternate weekend.
6. The Council started reassessing Mrs X’s needs in April 2019. This followed a couple of weeks in March when its Reablement Service watched her care calls.
7. The Council completed its assessment in September. The assessment says Mrs X’s needs arise from, or are related to, a physical or mental impairment. It says she is not eligible for help under the Care Act, as there is only one outcome she cannot achieve (maintaining personal hygiene).
8. The assessment addresses Mrs X’s needs under these headings:
• Communication
• Personal care
• Eating and drinking
• Running and maintaining my home
• Social contacts and leisure
• Learning and work
• Making decisions and organising my life
• Keeping safe
• Managing my actions
9. I will address the areas where there was disagreement between Mrs X and the Council over her care needs.

Personal care

10. Mrs X said she could wash her face and put her wig and make-up on, but this took over an hour and left her unable to do anything else because of the pain. The assessment reports Care Agency B saying it provided no help with washing, but Mrs X said this was not correct. Care Agency A said Mrs X had dressed her bottom half when its carers arrived (at great difficulty according to Mrs X) but it helped her dress her top half. The Council said this suggested she could bend to dress her lower half (Mrs X said she sat, rather than bent, down to do this). Care Agency A said Mrs X could not lift her arms high enough to wash under them. The Council said this was not in line with Mrs X’s ability to put her make up and wig on (Mrs X said she sits forward to do this and it takes an hour). Care Agency B said it helped Mrs X with applying cream prescribed by her GP to her back and upper arms, but no other personal care. Mrs X says this is not correct.
11. The Reablement Service saw Mrs X sit on a perching stool while carers helped take her top and cardigan off. Mrs X showed the weakness in her right arm. But she asked the Reablement Service to leave before completing other personal care tasks.
12. The assessment says Mrs X could be more independent if she bought equipment, such as a sponge on a stick.

Eating and drinking

13. The assessment says Mrs X agreed she could manage eating, drinking and preparing food independently. However, it says Mrs X uses her carers to prepare fresh vegetables which she then cooks to eat with her ready-made main meal later in the day. It also says the carers open tins for her. Care Agency B told the Council Mrs X had often prepared her vegetables before they arrived, but Mrs X disputed this. The Assessment says Mrs X could achieve more independence if she bought equipment: electric tin opener; light weight baskets to cook vegetables; easy grip knives; a microwave or a table-top oven. Mrs X said she did not want to buy this equipment. Nor did she want to buy frozen or prepared vegetables to avoid the need for care and support.

Running and maintaining my home

14. The assessment says:
• Mrs X can do her own shopping and manage her finances:
• the Council previously funded domestic cleaning but stopped this after a reassessment;
• Mrs X secured a grant to pay for cleaning;
• Mrs X reported being unable to do cleaning as she cannot grip to clean or dust;
• Care Agency A made the bed, washed the pots; fed Mrs X’s dog, vacuumed, cleaned the hob, emptied the kitchen bin and took the recycling out;
• Care Agency B did “general maintenance”, washed dishes, vacuumed and fed the dog;
• Mrs X said she could not put her hands in hot or cold water because of the pain this caused;
• she could consider buying a dishwasher to wash up her pots;
• her private cleaner could do some of the tasks for her.
15. The assessor’s summary says:
• “General household tasks such as feeding the dog, hoovering the kitchen rug, making the bed, washing the pots and taking the bin and recycling out are not eligible needs under the Care Act 2014.”

Managing my actions

16. The assessment accepts Mrs X’s anxiety about losing her care. It says she has built an emotional reliance on her carers which reduces her anxieties. It says she may benefit from help with her mental health but did not want to purse this with her GP.
17. When Mrs X complained about the assessment in October, the Council offered a reassessment using its Reablement Service instead of her Care Agencies. When Mrs X raised concerns about losing the Care Agencies, the Council said its Reablement Service would continue to support her until an alternative provider was found.
18. Mrs X declined the reassessment because of her concerns about losing her chosen Care Agencies. In November, the Council offered to continue funding the two Care Agencies while re-assessing her. When Mrs X turned the offer down the Council said her direct payments would end on 8 December.
19. Mrs X decided to accept the Council’s offer. Its Reablement Service started visiting Mrs X on 25 November to assess her for 10 to 14 days. But on the third day she sent them away. She says they tried to get her to do things she cannot do. Mrs X is continuing to pay the Care Agencies with money in her direct payment account. The Council has stopped paying money into the account and, according to Mrs X, says she needs to repay over £3,000.
20. Mrs X says Care Agency B accepts the information it gave to the Council was not correct and that it provides the same support as Care Agency A.

Is there evidence of fault by the Council which caused injustice?

21. The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:
• The needs must arise from or be related to a physical or mental impairment or illness.
• Because of the needs, the adult must be unable to achieve two or more of the following outcomes:
1. Managing and maintaining nutrition;
2. Maintaining personal hygiene;
3. Managing toilet needs;
4. Being appropriately clothed;
5. Being able to make use of the adult’s home safely;
6. Maintaining a habitable home environment;
7. Developing and maintaining family or other personal relationships;
8. Accessing and engaging in work, training, education or volunteering;
9. Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
10. Carrying out any caring responsibilities the adult has for a child.
• Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.
22. The Council accepts Mrs X needs help with maintaining personal hygiene. But, as that is the only outcome it says she cannot achieve, she does not pass the eligibility threshold. The issue for me to consider is whether there was fault by the Council over the way it decided Mrs X could meet all the other outcomes.
23. The Care and Support Statutory Guidance (Guidance) says: “there is no hierarchy of needs” (paragraph 6.114). For maintaining a habitable home, it says: “local authorities should consider whether the condition of the adult’s home is sufficiently clean and maintained to be safe. A habitable home is safe and has essential amenities” (paragraph 6.106). It says: “During the assessment, local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer” (paragraph 6.15).
24. When considering Mrs X’s ability to maintain a habitable home the Council took account of the support provided by her private cleaner. That is fault by the Council. The Council also told Mrs X various activities such as cleaning, washing up, making the bed and taking rubbish out were not eligible needs under the Care Act. But that is not the case. A home where no cleaning or rubbish were taken out and the bed never made would not be sufficiently clean or safe. That means this part of the assessment is flawed, which is fault by the Council. This leaves some doubt over whether the assessment is correct.
25. Within the section on personal care the Council addressed three of the outcomes the Guidance requires it to consider: maintaining personal hygiene; managing toilet needs; and being appropriately clothed. The Council accepts Mrs X cannot maintain her personal hygiene and there is no dispute over the fact she has no toilet needs.
26. However, there is a dispute over whether Mrs X can dress herself. It appears she can dress her bottom half, though with some difficulty which, in itself, could be an eligible need if she were prepared to accept help with this. This is because not being able to achieve an outcome must take account of it taking significantly longer than normally expected. It must also take account of significant pain, distress or anxiety caused by an activity.
27. The assessment says Care Agency A helps Mrs X dress her top half, but Care Agency B only does this occasionally and then only the last layer of clothing. Mrs X would not let the Reablement Service watch her getting dressed, although she showed the weakness and limited range of her right arm and the Reablement Service saw a carer help her undress. Mrs X says Care Agency B accepts it gave the wrong information to the Council.
28. In cases where there is a dispute over someone’s functional ability it is helpful to ask an Occupational Therapist to do a functional assessment. But the Council does not appear to have done this. However, Mrs X’s unwillingness to allow officers watch her personal care has hampered the Council’s ability to establish exactly what she can and cannot do for herself.
29. The Guidance says councils should consider a person’s strengths and capabilities. This can include considering what, other than providing care and support, might help the person to meet the outcomes they want to achieve. The Council has identified equipment Mrs X could use and actions she could take to avoid the need for care and support with managing and maintaining nutrition. I cannot find fault with the Council over that.
30. To remedy the injustice caused by the doubt over the assessment, the Council needs to offer Mrs X another assessment, preferably including a functional assessment by an Occupational Therapist. This could be less intrusive than officers visiting every day. It will be for Mrs X to decide whether to accept the offer and, if so, she will need to participate fully in the assessment.

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Agreed action

31. I recommended the Council:
• within four weeks offers to reassess Mrs X’s needs so it can properly address the need for help with maintaining a habitable home environment and reconsider the need for help being appropriately clothed;
• within eight weeks:
1. subject to Mrs X agreeing to the reassessment and engaging with it, completes the assessment; and
2. identifies the action it needs to take to make sure its officers properly address the need for help maintaining a habitable home environment and consider using an Occupational Therapist to resolve disputes about functional abilities.

The Council has agreed to do this.

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Final decision

32. I have completed my investigation as the Council has agreed to take the action I recommended.

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Investigator's decision on behalf of the Ombudsman