Summary: The Council responded to Mr X’s request for services, but he and his family then refused their consent to be referred. There is no fault by the Council.

The complaint

1. Mr A (as I shall call the complainant) complains on behalf of his disabled brother Mr X that the Council has failed to provide support for the family despite repeated requests for assistance.

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What I have investigated

2. I have investigated the complaint as set out above. I explain at the end of this statement why I could not investigate other aspects of the complaint.

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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. 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)
4. 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

5. I considered the information provided by the Council and the complainant. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

6. Sections 9 and 10 of the Care Act 2014 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.
7. An adult with possible care and support needs or a carer may choose to refuse to have an assessment. In these circumstances local authorities do not have to carry out an assessment.
8. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
9. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
10. Councils which are social care authorities have a duty to co-operate with relevant partners, including the NHS, in meeting their responsibilities both generally and in specific cases. That may include seeking NHS involvement if they consider a person may be eligible for NHS continuing care. A family member or care provider may refer a person to the NHS for continuing care assessment if the council does not. It is the responsibility of the relevant NHS body, not the council, to assess the person’s needs and decide whether they are eligible for continuing care.
11. The NHS can provide continuing healthcare at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare where it appears somebody may be in need of such care.
12. The Decision Support Tool (DST) – used in NHS continuing healthcare funding decisions – is a document which helps to record evidence of an individual’s care needs to determine if they qualify for continuing healthcare funding. The first step for most individuals will involve a healthcare professional using the continuing healthcare checklist to decide whether it is appropriate to undertake a full NHS continuing healthcare assessment. The initial checklist does not decide if an individual is eligible for funding, only whether they should be recommended for a full continuing healthcare assessment, as evidenced by the National Framework for NHS Continuing Healthcare (2012).
13. The National Framework for NHS Continuing Healthcare says “If an individual with capacity does not consent to being assessed for NHS Continuing Healthcare or to sharing information which is essential for carrying out this assessment, the potential consequences of this should be carefully explained. This might affect the ability of the NHS and the local authority to provide appropriate services to them”.
14. The Framework also says (para 96) “An individual cannot self-refer for NHS Continuing Healthcare by completing a Checklist themselves.” It says “The Checklist can be completed by a variety of health and social care practitioners, who have been trained in its use”.

15. Fast track CHC funding is also available. The only requirement for eligibility for fast-track funding is that the individual has a rapidly deteriorating condition that may be entering a terminal phase. In these circumstances there is no requirement for the two-stage (checklist and DST) process to be completed.
16. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

What happened

17. Mr X suffers from a severe wasting disease. He is usually confined to bed and has assistance with breathing. He requires 24-hour care, which is provided by his family.
18. In December 2018 Mr A asked the Council for fast track CHC funding for Mr X. The Council’s records show the duty social worker contacted Mr X’s GP to discuss the request. The Council’s records note, “Dr advised that (Mr X) does have complex health needs but prognosis is poor however but not appropriate for Fast Track. She advised that (Mr X) has Muscular Dystrophy and this impacts on health and wellbeing. Appropriate course of action is to carry out an assessment and complete CHC checklist accordingly alerting CCG for a DST assessment.”
19. A senior case officer discussed with Mr A the arrangements for completing a checklist with Mr X. The case officer contacted the District Nursing (DN) team about completing the checklist. A DN told the case officer nothing had changed in terms of Mr X’s health. The case officer said Mr X had a right to make the request. She tried to contact Mr A again but without success.
20. Case notes for January 2019 say a DN agreed to complete the CHC funding checklist. The case officer checked the case notes on 30 January but found no checklist had been completed. The case recording shows the case officer agreed with her manager she would complete the checklist herself, with some health professional involvement. The DN agreed this would demonstrate some independence from the health care team, as she had concerns Mr X showed some distrust of the DNs.
21. The case officer visited Mr X on 6 February. Mr A was present. She asked to see them both separately for a short time but they refused. Her case recording says, ‘CHC Consent form -- approx. 40 mins spent discussing this. Agreement was to progress with the checklist, for me to send the checklist to (Mr X and Mr A) and, if they are in agreement, they will complete consent to share info. However, info only to be shared with CCG (e.g. not District Nurses or others).’
22. The case recording shows the case officer explained to Mr A and Mr X they had the right to withdraw their consent in full or part. She also said she could use the information from the checklist to update the social care needs assessment which the Council held for Mr X, but they refused. They said they only wanted the CHC referral. The case recording confirmed Mr X met the criteria to go forward for the full DST. The case officer noted Mr A and Mr X wanted sight of the completed checklist before she sent it on to the CCG. She also explained to Mr A she could complete a carer’s assessment for him.
23. The case officer emailed and posted a copy of the completed checklist to Mr A and Mr X on 8 February. When she did not receive a reply from Mr X or Mr A with their consent to forward the checklist she contacted them on 27 February. Mr A replied that Mr X had been unwell. They wanted to make some amendments and said they would amend the checklist and email it back to the case officer.
24. On 25 March the case officer emailed to remind Mr X and Mr A she was still waiting for their comments. Mr X replied on 8 April that he hoped to email their comments that week. On 12 April, as she had not received the comments, the case officer emailed again asking for return of the comments as soon as possible so she could refer the case on.
25. On 24 April Mr A and Mr X returned the checklist with many comments where they disagreed with the case officer’s completion of the checklist. The case officer explained to them she couldn’t refer their form of the checklist but as a pragmatic solution she could send both her completed checklist and their amended version. Mr X and Mr A disagreed.
26. The case officer contacted the CCG for advice. An officer there advised, ‘1 -- The framework is clear that it has to be completed by an appropriate professional (e.g. social worker, district nurse etc) -- it cannot be completed by the individual. 2 -- the checklist is only a screening tool to proceed. 3 -- If they do not consent to a referral then the implication is they will miss out on an opportunity for further consideration (DST)/referral cannot be made.’
27. The case officer emailed Mr X and Mr A on 2 May to explain. In the absence of a response, she emailed again on 25 May saying unless she heard from them by 31 May, she would end her involvement. Mr X emailed on 30 May. He said they felt the case officer was delaying their referral to the CCG for funding. They wanted her to forward their version of the checklist only. The case officer emailed again explaining it was not possible to do so but she would send their version as well if she had their consent. She extended the deadline to 3 June for them to consider further.
28. On 4 June the case officer ended her involvement and closed the case, noting she could not forward the checklist without consent.
29. Mr A made extensive complaints to the Council in December 2018 about the way in which their family had been treated over a number of years. He complained the Council had failed to provide proper support for his father or support the family in looking after their father. He complained about harassment and allegations that he coerced his brother Mr X.
30. The Council’s Adult Social Care manager responded. He said no-one at the Council had concerns about the care provided to Mr X by his family. He said however there had been concerns raised by health staff because they were unable to speak to Mr X alone. He explained the Council had a duty to investigate the safeguarding referral which had been made.
31. Mr X and Mr A complained to the Ombudsman in November 2019. We asked for consent to investigate the complaint jointly with the Parliamentary and Health Service Ombudsman as many of the complaints concerned the NHS. Mr A and M X did not give their consent.
32. The Council says it does not have an active support plan for Mr X as he and Mr A refused an updated assessment and only wanted a CHC referral. It says, “The social worker and service user disagreed with an approach and although the social worker passed on information from the Clinical Commissioning Group, the CHC assessment could not be completed”.

Analysis

33. The Council responded promptly to Mr X’s requests for assistance with completion of a checklist for CHC eligibility. There is no evidence of fault there.
34. The Council appropriately explained to Mr X and Mr A the need for consent, their right to withdraw it and the consequences of not consenting to a referral.
35. The Council completed the CHC checklist but was unable to refer it to the CCG for further action. That was because Mr X and Mr A did not consent for the completed checklist to be referred. The National Framework does not permit completion of the checklist by the individual. It was not fault on the part of the Council not to refer the checklist on without consent, or to fail to refer the checklist completed by Mr A and Mr X.

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Final decision

36. There is no fault on the part of the Council.

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Parts of the complaint that I did not investigate

37. Mr A also complains that the Council failed to provide help for him when he looked after his elderly father, and about the actions of social workers undertaking a safeguarding investigation. I explain at paragraph 4 why we cannot consider those aspects of the complaint.

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Investigator's decision on behalf of the Ombudsman