Summary: Ms X complains the Council failed to deal properly with the assessment of her care needs and unreasonably stopped her personal budget, leaving her without any support. There was no fault over stopping Ms X’s personal budget as, in effect, she made that decision herself. However, there was a failure to take a more flexible approach to assessing her needs. The Council needs to apologise, pay financial redress, identify and offer more flexible ways of assessing Ms X, and take action to prevent similar problems from happening again.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council failed to deal properly with the assessment of her care needs and unreasonably stopped her personal budget, leaving her without any support.

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What I have investigated

2. I have investigated matters relating to Ms X’s social care needs since September 2016, including the actions of the Devon Partnership NHS Trust (the Trust) when it has been fulfilling the Council’s duties under the Care Act 2014.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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)

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How I considered this complaint

7. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X via e-mail;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Ms 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

8. The Council commissions the Devon Partnership NHS Trust (the Trust) to carry out some of its duties under the Care Act 2014. The Trust has been dealing with Ms X because she has both physical and mental health conditions.
9. The Trust wrote to Ms X in September 2016, responding to a complaint about health services. Among other things, which are not relevant to my investigation, the Trust said Ms X’s managed personal budget of £80.50 a week was overdue a review.
10. On 9 November the Trust completed a social care funding application for £80.59 a week. It says Ms X could not achieve these outcomes:
• maintaining a habitable home environment;
• developing and maintaining family or other personal relationships;
• making use of necessary facilities or services in the local community including public transport and recreational facilities or services.
11. The application says Ms X has a mental health condition but also refers to back problems causing chronic pain, with the two conditions impacting on each other. It identifies the need for help with household jobs, paperwork, maintaining relationships with family and others, and getting out of the home.
12. On 15 November the Trust filled in a community care plan for Ms X. This was within the context of a decision to discharge her from its mental health services but to continue with her social/community care. The care plan says Ms X did not give her consent as she was “not willing to engage at present”. It says Ms X had a package of care consisting of five hours of support a week from a Support Provider. It does not say what Ms X’s eligible care needs were or identify the outcomes she wanted to achieve. The Trust did not send Ms X a copy of the plan.
13. The Panel agreed the funding application subject to a review in three months (27 February 2017) “to ensure that the services received continue to meet the person’s needs and outcomes as stated on the support plan”.
14. The Trust wrote to Ms X. It said following a recent social care assessment it had agreed to pay £80.50 a week to meet the outcomes outlined in her support plan. It said:
• it would pay the money directly to Ms X’s Support Provider;
• Ms X had chosen the Council to buy and manage her support;
• it would pay the money until 24 February 2017 when it would review her personal budget.
15. On 29 November the Trust wrote to Ms X. It said it was discharging her from the Mental Health Recovery Team, but she would continue to receive support from the Support Provider, subject to annual reviews.
16. On 8 March 2017 the Trust noted it needed to review Ms X’s needs by 24 March, although it had told Ms X it needed to do this by 24 February. It contacted Ms X’s Support Provider which said it was providing support for:
• 3 hours on Tuesdays – to prevent isolation, engage with activities in the community and form friendships outside the family network, but it had only managed to support her to leave the house twice since December; and
• 2 hours on Thursdays – for emotional support, paperwork and correspondence, about three-quarters of which had been productive.
17. The Trust arranged to visit Ms X on 16 March with her Support Provider. But Ms X declined the appointment as her Advocate was away.
18. According to the Council, the Trust said it started an assessment on 30 March but it ended after two hours as Ms X reported feeling fatigued.
19. The Trust tried to arrange an appointment for 13 April. The Advocate proposed 30 March.
20. According to the Support Provider’s records, there was a meeting at Ms X’s home on 20 April with her Assessor to discuss her support hours. Ms X said three hours for socialising may be an unrealistic goal at present. She said it would be better to have two and half hours “to express how she was feeling”. Ms X says she asked if each of the Support Provider’s visits could be for two and half hours. The Support Provider’s records say the Assessor was filling in a support application form but only managed to complete half of it “before the meeting had to end because of time constraints”. The Assessor only made a handwritten record of the meeting, which she subsequently destroyed (see paragraph 22 below).
21. The Trust’s records contain no further information until 26 July when it noted Ms X had cancelled a meeting for 27 July as her sister was unwell. They rearranged the appointment for 9 August. But, on the morning of 9 August, Ms X’s Support Provider told the Council she had cancelled. Ms X says the decision to cancel the meeting was because the Council had not informed the Support Provider about the meeting.
22. On 10 August Ms X’s Assessor, who was about to go on leave, e-mailed a Social Worker to outline the information obtained in April when she started a social care review which Ms X brought to an end “due to fatigue” after nearly two hours. The information gathered in April refers to significant difficulty/risk achieving several outcomes (e.g. maintaining the home, shopping, preparing food, transfers, personal relationships and social activities). Ms X did not want to share information about personal care at the meeting but said she would provide this over the telephone. At this point the Assessor destroyed her handwritten record of the review.
23. On 14 August the Trust responded to a complaint Ms X had made about its health services. This addressed 73 specific issues she had raised.
24. On 1 September Ms X told the Council the Support Provider had not turned up at all that week. She said a manager had offered to visit but she liked to have carers introduced to her. She understood she had been due a review and said she did not feel in control of her personal budget. She said no one had told her what funding she was entitled to, but she wanted to source another Support Provider as the current arrangement was not working for her. The Council told the Trust about Ms X’s call.
25. On 4 September the Support Provider told the Trust it was short of staff and had offered Ms X either reduced hours, alternative days or alternative staff, but she declined, saying she would spend time with family/friends. It had tried rearranging support for that week but had not heard from Ms X. It said she was using her support to offload about her complaints. The Trust told the Support Provider it would review Ms X’s support within the next 10 working days, to see if she wanted another provider and to point out that her support package was for enabling, not offloading about complaints. The Trust tried calling Ms X but there was no reply and it could not leave a message.
26. The Trust spoke to Ms X on 5 September. She said she was overwhelmed by a number of things and needed support. According to the Trust’s records, she agreed to speak to a different advocacy company about supporting her with the review. She said she would call back in a few days after speaking to the advocacy company to fix a date for the review.
27. On 11 September Ms X’s original Advocate e-mailed the Trust asking for an update on her review.
28. On 26 September the Trust spoke to Ms X, who asked about a GP referral (for mental health services). Ms X says a Social Worker called her who tried to bully her into accepting a review on 28 September when no support would be available for her. The Trust has no record of this call.
29. On 4 October the Social Worker told Ms X’s Advocate she would be reviewing Ms X’s needs with the Assessor who had started but not completed a review in April. She said this was because of the number of complaints, and to help Ms X feel safe “as well as protecting ourselves”. The Social Worker proposed reviewing Ms X’s needs on 17 October.
30. The Trust wrote to Ms X on 9 October offering to review her needs at 14.00 on 17 October.
31. On 16 October Ms X’s Advocate e-mailed the Trust saying Ms X did not agree to a meeting the following day as:
• only one person should do her review;
• she believed she was being treated differently from other people by sending two Social Workers.
32. On 18 October the Trust replied to the Advocate inviting him to confirm his availability and saying:
• it intended to offer another review date;
• its procedure was to offer one more date, after which it was likely to stop Ms X’s care package if she did not respond or refused the date, unless there were exceptional circumstances such as illness;
• sometimes it would send out a final letter inviting the person to get in contact; and
• it would send two people to assess Ms X because of recent multiple complaints and to safeguard themselves as well as Ms X.
33. On 15 December the Trust replied to a complaint from Ms X’s MP. It said:
• in November 2016 the Social Care Panel asked the Support Provider to review Ms X and to continue supporting her for three months, returning to the Panel in February 2017;
• during this time it discharged Ms X from its mental health team;
• Ms X postponed an appointment offered for 16 March 2017;
• it offered alternative dates on 23 March, 6 or 13 April but they were not convenient;
• it visited Ms X on 9 May with the Support Provider and her Advocate but after two hours had not completed the review because of the complexity of the case;
• it arranged another appointment for 25 July (actually 27 July) with two officers, but Ms X could not attend as her sister was unwell;
• it offered to complete the review on 9 August but Ms X cancelled via the Support Provider, without giving a reason;
• it contacted Ms X on 5 September but she was not sure who she wanted involved in a review, so they did not agree another date;
• on 9 October it wrote offering 17 October but Ms X would not agree to this if the Trust sent two officers;
• it would offer Ms X a further date to complete the assessment;
• as it had not completed the review it had not been able to assess Ms X’s ability to manage a direct payment independently.
34. On 19 December the Support Provider e-mailed the Trust asking whether Ms X’s support package would continue or decrease. It said it could now provide her full support package. However, it said Ms X’s mental health had declined and she was refusing to meet new staff. It said it needed more support from the Trust over meeting Ms X’s needs, as she would spend all her time complaining about services. The Trust advised telling Ms X staff would leave the room when she did this and would only return when she was willing to engage in support activities, such as cleaning the house.
35. On the same day Ms X e-mailed the Support Provider ending its support due to breaching her confidentiality with her GP. The Support Provider told the Council the next morning.
36. The Trust wrote to Ms X on 20 December offering to review her needs on 11 January 2018 at 14.00 with two Officers. It said the need for two Officers was “due to the receipt of your complaints regarding your social care review and to also ensure your social care review is comprehensive and accurate”. It said it would consider continuing with the assessment without her direct involvement, in which case she would be able to send written representations.
37. The Trust contacted Ms X’s Advocate on 21 December to check if he would be supporting her with the review. It said if unsuccessful it would do the review based on information collected from others (e.g. her GP, the Advocate and the Support Provider), her letters and the last contact with her.
38. The Trust wrote to Ms X on 29 December. It said it was important for her to attend the appointment on 11 January as she had decided not to continue with the enabling support package from the Support Provider. It said meeting with the social care team may help to source a new enabling package so she would have “some support with everyday living skills, paperwork etc.”.
39. On 9 January 2018 Ms X’s Advocate told the Trust Ms X could not meet on 11 January as her sister was not available to support her so needed an alternative date. She said Ms X objected to the Social Worker assigned to assess her, because of previous problems, and asked the Trust to assign someone else. The Advocate said these issues needed to be addressed before progressing with her personal budget and her request for direct payments.
40. On 11 January the Trust told Ms X’s Advocate it had contacted an external agency of Social Workers to provide someone to work with its own Assessor over the review of her needs. It said it would be in contact to make an appointment when it had the name of the Social Worker.
41. On 12 January the Trust offered Ms X an appointment on 23 January for her review.
42. on 22 January the Advocate told the Trust Ms X was declining the meeting and wanted the review to stop for health reasons as the Trust:
• was treating her unfairly by requiring two Officers to undertake the review based on false claims of deceptive and aggressive behaviour;
• was not being transparent about her personal budget and had prevented her from accessing it to arrange her own support;
• the Trust had prevented completion of the review, not Ms X.
43. The Trust replied to Ms X’s Advocate saying:
• it could see no references to aggressive and deceptive behaviour but wanted two Officers to do the review because of the issues Ms X had raised and this would make for a more accurate assessment and make sure nothing was missed.
44. Ms X wrote to the Council on 31 January, outlining her problems with the Trust. She said:
• the Trust had been trying to assess her mental health without her knowledge or consent;
• correspondence received following a subject access request showed it had planned to “firmly set boundaries with” her, which meant it wanted to apply discriminatory restrictions;
• she had terminated contact with the Trust; and
• asked if the Council could assess someone, such as her, with physical and mental health problems.
45. When the Council replied on 8 March it said it could not respond to the issues Ms X had raised about the Trust. However, it offered to assign two Officers to start an assessment but said it would need some input from mental health services. It offered to discuss this with her at a meeting.
46. On 15 March the Trust told Ms X it could not reinstate her personal budget without first completing the review.
47. The Trust wrote to Ms X’s Advocate on 12 April. It said it offered Ms X an appointment on 23 January to complete the review of her needs, but she turned this down saying she no longer wanted to access a service from the Trust. It said if she wanted to receive social care support Ms X would need to contact her GP who could complete a referral.
48. The Council wrote to Ms X on 5 August 2019. It repeated much of what the Trust had said in its letter of 17 December 2018 (see paragraph 33 above). It also said:
• it would have been helpful for the Trust to share its partially completed assessment from April 2017 and would arrange for this to happen (but this was not possible, see paragraph 22 above);
• denied the Trust had been trying to assess her mental health during the proposed social care review;
• it needed to complete an assessment before providing a direct payment;
• Ms X had not complained to the Trust about being bullied but when she objected to one of the Social Workers it had allocated someone else to work with her;
• the need for two Officers was to ensure a holistic and thorough assessment of her needs;
• the Trust stopped her personal budget because it could not complete the review so could not evidence the need for support to meet her mental health needs;
• the Trust had advised her to refer herself back if her needs changed or felt she had unmet needs;
• the Trust had advised her to contact the Council if she felt she had physical health needs.

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

49. With reference to paragraph 6 above, although Ms X’s complaint is a late complaint, we have exercised the Ombudsman’s discretion to investigate it. This is because her original complaint was not late and the Council only completed its response in August 2019. I have not investigated events before September 2016.
50. The Trust’s records provide an incomplete and therefore confusing account of events. That is fault for which the Council is accountable (see paragraph 5 above). For instance, the Trust has no record of when it started to review Ms X in 2017. It told the Council it started the review on 30 March but could not complete it because Ms X felt fatigued. It told her MP it started the review on 9 May but could not complete it because of the complexity of the case. According to the Support Provider’s records, the Trust started the review on 20 April but did not complete it (after 2 ½ hours) due to time constraints. Given that its records are at least contemporaneous, it seems likely this is the correct date.
51. The Care and Support Statutory Guidance (Statutory Guidance) says care and support plans need to be reviewed at least every 12 months, although “a light touch review should be considered 6-8 weeks after the plan and personal budget have been signed off”. Ms X’s personal budget had been in place for some time. The Trust decided to continue funding it for three months in November 2016. It appears this decision was linked to the separate decision to discharge Ms X from NHS mental health services. Given the change in Ms X’s circumstances and the fact she had not been involved in drawing up the November care and support plan, I cannot find fault with the Trust for wanting to review the arrangement after three months.
52. Nor can I find fault with the Trust for wanting to reassess Ms X’s needs. Until it discharged her from mental health services, it will have been managing her health and social care using the Care Programme Approach, which exists for that purpose. Once it discharged her from mental health services it needed to assess her social care needs under the Care Act. Besides, by March 2017 it was clear the support being provided to Ms X was not being used to achieve the outcomes identified by the Support Provider (see paragraph 16 above). That continued to be the case throughout 2017 (see paragraph 34 above).
53. The Statutory Guidance says assessments must be appropriate and proportionate. There is no prescribed format, so they can be carried out in different ways: face-to-face; self-supported; online; or by telephone. The Statutory Guidance encourages a flexible approach to assessments which “can be adapted to best fit with the person’s needs wishes and goals”.
54. It appears the key trigger for the Trust deciding to send two Officers to assess Ms X’s needs was a complaint she made about its health services. It is unclear how sending two Officers would “safeguard” either them or Ms X, or indeed what anyone was being safeguarding from. When the decision to send two Officers became an obstacle to completing an assessment, the Trust should have considered alternative ways of gathering the information it needed to complete an assessment. While it briefly considered alternative approaches (see paragraphs 36 and 37 above) it failed to act on them or consider other alternatives. The failure to do so was fault for which the Council is accountable. The Council needs to offer Ms X alternative approaches to assessing her needs.
55. The evidence does not support Ms X’s claim that the Trust was trying to assess her mental health by sending two Officers to assess her. Neither would have been qualified to diagnose Ms X’s mental health condition. At most they could have offered to refer her to mental health services.
56. Ms X has questioned why the Trust continued to be involved in her social care after it discharged her from mental health services and her personal budget was less than £100 a week. It appears this was so its Officers could monitor (not assess) her mental health. This is not unusual when someone, prior to being discharged, has received mental health services for a number of years. It does not amount to fault.
57. It was Ms X’s decision to cancel support from the Support Provider in December 2017. Since then the only way to move forward has been to reassess her needs under the Care Act.
58. I cannot find fault with the Trust for not giving Ms X a direct payment without first reassessing her needs. It needed to satisfy itself that a direct payment would be used to meet eligible care needs.
59. The faults I have identified have added unnecessarily to Ms X’s distress. They have also contributed to the failure to complete an assessment of her social care needs.

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Agreed action

60. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Trust, I have made recommendations to the Council.
61. I recommended the Council:
• within four weeks, having first identified more flexible ways of assessing Ms X’s needs, writes to her offering alternative approaches and apologising for the previous lack of flexibility, and pays her £500;
• within eight weeks produces an action plan explaining how the Trust is going to:
1. improve its record keeping; and
2. ensure officers take a more flexible approach to assessments, as required by the Care and Support Statutory Guidance.

The Council has agreed to do this.

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Final decision

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

Parts of the complaint I did not investigate

63. I have not investigated the actions of the Trust in relation to Ms X’s healthcare needs. These fall within the jurisdiction of the Parliamentary and Health Service Ombudsman.

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Investigator's decision on behalf of the Ombudsman