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Durham County Council (19 015 436)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 21 Aug 2020

The Ombudsman's final decision:

Summary: Mrs X complained the Council’s adult social care team did not follow the Care Act 2014. The Ombudsman found there was fault when the Council delayed carrying out an assessment, failed to produce a care plan, and wrongly charged Mrs X for intermediate care.

The complaint

  1. Mrs X complained the Council’s adult social care team did not follow the Care Act 2014. She said it:
    • Delayed carrying out a needs assessment.
    • Failed to put a care plan in place after it identified eligible needs.
    • Failed to provide support for her continuing health care application.
    • Put unsuitable intermediate care in place which it wrongly charged for.
    • Failed to assign a new social worker for her.
  2. Mrs X said the Council’s failings caused her distress and inconvenience which made her health worsen.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)

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How I considered this complaint

  1. As part of the investigation I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • The Care Act 2014.
    • The Care and Support (Eligibility Criteria) Regulations 2014.
  2. Mrs X and the Council both had an opportunity to comment on a draft of this decision.

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What I found

Legislation and guidance

  1. Local authorities have a duty to assess adults who appear to need care and support. The duty to carry out a needs assessment applies regardless of the authorities view of the level of a person’s need (Section 9, Care Act 2014).
  2. If the needs assessment identifies eligible needs, the Council must provide a support plan which outlines what services are needed to meet the needs and a personal budget which sets out the cost of meeting the needs.
  3. The law does not set a timescale for local authorities to complete an assessment. However, statutory guidance says it should be carried out over an appropriate and reasonable timescale.
  4. If a person has been in hospital, they may need temporary care to help them stay independent and get back to normal. This is known as intermediate care or reablement care.
  5. Local authorities must not charge for intermediate or reablement care for the first six weeks. After six weeks local authorities may charge for it.

What happened

  1. Mrs X contacted the Council on 28 June 2019. She described her medical conditions and explained she could not sleep, did not like to go out, struggled to get dressed, use her wet room, or do housework. She wanted help. The Council sent Mrs X information about care providers, cleaning services, and a friend service.
  2. Mrs X contacted the Council again on 17 July 2019. The Council returned her call on 22 July. Mrs X said her doctor told her to contact the Council’s social care team about her mental and physical health problems and how this impacted her ability to manager her home. The Council told Mrs X to ask her doctor to make a referral to mental health services.
  3. The Council received a referral letter from Mrs X’s doctor on 30 July 2019. The letter explained the impact of Mrs X health conditions and said she needed a support worker. The Council telephoned Mrs X’s doctor’s surgery and said she needed a referral to mental health services.
  4. Mrs X’s doctor’s surgery telephoned the Council on 2 August. The surgery described the impact of Mrs X’s Myalgic Encephalomyelitis (ME). The Council said it could not help, but Mrs X could fund care herself.
  5. Mrs X complained to the Council on 2 August 2019 about her first contact with the Council’s adult social care team. She said the Council owed a duty of care and it had not assessed her despite her complex needs.
  6. The Council received a request for Mrs X to have a care needs assessment on 9 August 2019 from her doctor and from her local member of parliament (MP). The Council referred Mrs X’s case to a social worker to arrange an assessment.
  7. The Council assessed Mrs X on 28 August 2019. The result was Mrs X has eligible needs for care and support arising from her physical condition as well as depression and anxiety. Specifically, Mrs X was adjudged unable to:
    • Manage and maintain her nutrition.
    • Maintain her personal hygiene.
    • Make use of the home safely.
    • Maintain a habitable home environment.
    • Access facilities in the community.
  8. Mrs X’s social worker discussed a care package with her, and Mrs X agreed to have a financial assessment to see what contribution she would have to pay towards the cost of her care. Mrs X did not want to start any care until she knew the results of her financial assessment.
  9. The Council responded to Mrs X’s complaint on 28 August 2019. It said the role of its social care direct service is to provide advice, information, and referrals where necessary. The officers Mrs X spoke to decided signposting to other services and providing information was suitable, rather than a referral for an assessment.
  10. The Council accepted officers should have made this clear and ensured Mrs X was happy with the result. This would have given Mrs X the chance to say she was not happy, and officers could have offered an assessment.
  11. The Council also accepted the contact from Mrs X’s doctor should have made it clear to officers Mrs X had unmet needs. Officers should have referred Mrs X for an assessment. It apologised for this.
  12. The Council wrote to Mrs X on 19 September with the results of her financial assessment. Mrs X would have to pay £112.75 a week towards the cost of her care.
  13. Mrs X telephoned her social worker on 1 October 2019. She was upset at the contribution she would have to pay towards the cost of her care. Mrs X said her doctor suggested applying for continuing health care (CHC) funding from the NHS. Mrs X’s social worker arranged to visit her to complete a CHC funding checklist.
  14. Mrs X’s social worker completed the CHC funding checklist on 7 October 2019. The result did not meet the threshold to trigger a meeting with an NHS assessor. However, Mrs X disagreed and asked her social worker to arrange an assessment anyway. The social worker agreed to send a request to the NHS.
  15. The NHS community nursing team made a referral to the Council on 18 October 2019 for intermediate care (IC) for Mrs X after she had been in hospital following illness. The NHS assessed Mrs X as struggling to wash, dress, and prepare meals. It proposed a care package of 30 minutes personal care in the morning twice a week, an extra 15 minutes twice a week for showering, and 40 minutes care for evenings meals, washing dishes, and to supervise and encourage mobility. The package was intended to last six weeks.
  16. Mrs X telephoned her social worker on 22 October 2019 as she was upset with her IC package. She said carers were rushing her and asking her to shower when she could not balance. Mrs X felt the care was not suitable. Mrs X’s social worker arranged for the care provider to be changed.
  17. The NHS assessed Mrs X for CHC funding on 25 October 2019. The result was Mrs X did not qualify for CHC funding. Mrs X and her husband were angry. They said the Council treated them unfairly, the financial assessment was unfair, and Mrs X should not have to pay so much. Mrs X’s social worker told her she could appeal the result of the CHC assessment to the NHS.
  18. Mrs X telephoned her social worker on 28 October 2019. She did not agree with the CHC funding decision and said her social worker did not support her in the process. Mrs X’s social worker said they warned Mrs X she did not meet the criteria and was unlikely to get funding but agreed to arrange a meeting anyway.
  19. Mrs X spoke to her social worker’s manager and asked for a new social worker. Mrs X was told a new social worker was starting on 11 November 2019 and she agreed to be assigned to them. Mrs X was told about the CHC appeals process.
  20. The Council spoke with Mrs X on 12 November 2019. She was unhappy with her IC package and the care provider sent a carer against her wishes. The Council asked Mrs X if she would like to discuss this with a new social worker. Mrs X declined and wanted to cancel her IC package. The Council agreed.
  21. Mrs X complained to the Council on 7 December 2019. She said:
    • The Council identified she had care needs but did not produce a care plan.
    • Her financial assessment result was too expensive.
    • Her social worker told her she had passed the CHC funding checklist.
    • The CHC was flawed and the assessor did not take her medical history into account.
    • She was provided the wrong type of care - rehabilitation, not IC.
    • The Council wrongly sent her a bill for the cost of her IC.
    • The Council did not assign her a new social worker.
  22. The Council cancelled the invoice it wrongly sent to Mrs X for the cost of her intermediate care on 2 January 2020.
  23. The Council responded to the complaint on 7 January 2020. It said:
    • Mrs X’s social worker told her she did not meet the criteria for a CHC assessment but agreed to arrange a meeting anyway. Mrs X’s social worker contributed to the meeting and the assessor gave Mrs X details about how to appeal to the NHS.
    • It gave Mrs X correct advice about benefits and the contribution she would have to make towards the cost of a care package.
    • Mrs X’s doctor made a referral for IC, taking account of her health conditions. The Council accepted it should not have charged Mrs X for her IC. This was due to an administrative error when it changed the care provider.
    • The Council said it did not delay assigning a new social worker for Mrs X. It offered her a new social worker, but she declined.
  24. Mrs X brought her complaint to the Ombudsman on 9 December 2019. She told me what the Council recorded about her first contact is wrong. She was not asking for help with mental health, she needed physical care help. Mental health issues were incidental. She did not tell the Council she was lonely. Mrs X said she wants the Council to admit it was wrong and apologise. She would like a new social worker, a new CHC assessment, and the errors in her records corrected.

Response to enquiries

  1. The Council accepts officers should have considered referring Mrs X for a needs assessment on her initial contact. It apologised for failing to do this.
  2. The Council told me it did not complete a care and support plan for Mrs X because she declined care services after finding out her financial contribution. The Council accepts this was an error and apologises to Mrs X for this. It said its care planning procedure was not clear enough and it will be reviewed.
  3. The Council said Mrs X’s doctor made a referral to the NHS district nursing team for IC after a health-related crisis. The district nursing team assessed Mrs X and decided what care she needed. The Council was not involved at that point. The district nursing team then asked the Council to arrange a care provider for Mrs X’s IC.

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Analysis

  1. I appreciate the Council’s social care direct service was trying to give suitable advice, but Mrs X clearly expressed need for support. This was repeated by her doctor. The Council has a duty to assess someone who appears to have care and support needs. It did not refer Mrs X for an assessment until it received a request from her doctor and MP. It was fault not to offer Mrs X an assessment sooner. The Council recognised this, and its apology is welcome.
  2. The Council’s assessment identified Mrs X had eligible needs for care and support, but it did not produce a care plan. That was fault. The Council has accepted it should have made a care plan and its procedure is not clear.
  3. The evidence I have seen shows the Council did support Mrs X in her CHC funding application. The Council’s records show it arranged a meeting for Mrs X with an assessor even though she did not meet the criteria. Mrs X can appeal the result of the assessment to the NHS.
  4. Mrs X’s IC assessment was carried out by the NHS district nursing team. They produced a care plan and the Council’s role was to arrange a care provider. The Council accepted it wrongly charged Mrs X for her IC after an administrative error when the care provider was changed. It has cancelled the charges.
  5. Mrs X asked the Council for a new social worker. The evidence I have seen shows Mrs X and the Council agreed she would be assigned to a social worker who was due to start work with the Council. Mrs X later cancelled her IC and declined to speak to a new social worker. I therefore do not find the Council delayed or failed to assign a new social worker to Mrs X.

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Did the fault cause injustice?

  1. The Council did carry out a needs assessment, but there was a delay of about six weeks. Mrs X was put to unnecessary time and trouble contacting her GP, her MP, and making a complaint before she got an assessment. That caused added avoidable distress and inconvenience to what was already a distressing situation for Mrs X.
  2. Mrs X declined services from the Council due to the cost, so I do not consider she missed any services by the Council’s failure to produce a care plan. However, the lack of a care plan did cause uncertainty about what Mrs X’s choices were.
  3. Mrs X suffered further avoidable distress when the Council wrongly sent her a bill for the cost of her IC. The Council waived the fee, but this does not take away the distress Mrs X suffered.

Agreed action

  1. Within eight weeks of my final decision the Council will:
    • Apologise and pay Mrs £300 to recognise the distress, inconvenience, and uncertainty its faults caused.
    • Report to the Ombudsman about the review of its care planning procedure and any improvements it can make.
    • Ensure officers in its social care direct service are aware of the Council’s duty to offer an assessment where there is an appearance of need.

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Final decision

  1. I have completed my investigation. There was fault when the Council delayed carrying out an assessment, failed to produce a care plan, and wrongly charged Mrs X for intermediate care.

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Parts of the complaint that I did not investigate

  1. I have not investigated whether Mrs X’s intermediate care was unsuitable. Mrs X declined a joint investigation with the Parliamentary and Health Service Ombudsman at this time. She wishes to raise the complaint separately when she raises other complaints with the health service.

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Investigator's decision on behalf of the Ombudsman

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