Summary: Ms Y complains the Council delayed in assessing her care and support needs following her discharge from hospital. Ms Y also says the Council did not consider her for reablement care and failed to backdate her direct payments to the correct date. The Ombudsman finds the Council included incorrect information in its assessment of Ms Y in June 2019 and then delayed in reviewing her needs thereafter. This meant that Ms Y went without the care she needed for longer than necessary, causing avoidable distress. The Council will apologise and pay £500 to Ms Y.

The complaint

1. The complainant, whom I will call Ms Y, complains the Council:
1. Delayed in assessing and reviewing her care and support needs and failed therefore to provide an appropriate level of support following her discharge from hospital in 2019;
2. Failed to consider her for reablement care; and
3. Did not backdate her Direct Payments to the appropriate date, and then issued invoices for Direct Payment arrears.

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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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. During my investigation I spoke to Ms Y about her complaint and considered all the information she submitted to me.
5. I made enquiries of the Council and considered its response.
6. I consulted the relevant law and guidance about the matters complained of, cited where necessary in this statement.
7. Ms Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Complaint a) assessment and review of Ms Y’s needs

What should happen

8. Sections 9 and 10 of the Care Act 2014 require councils 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 council 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.
9. Councils must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. They should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
10. Section 27 of the Care Act 2014 gives an expectation that councils should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on councils to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
11. When a person has eligible needs, councils should provide a care and support plan which sets out what needs a person has, what they want to achieve and what they are able to do by themselves or with existing support. The plan should include a personal budget which is the money the council has calculated that it will cost to arrange the necessary care and support for the person.

What happened

12. Ms Y has chronic health conditions and declining mobility. She uses a wheelchair to mobilise inside and outside her home. Due to the nature of her conditions, Ms Y is regularly in hospital.
13. The Council received a referral from Ms Y’s daughter, whom I will call Miss X, in December 2018. Miss X was 21 and lived at home with Ms Y. She had put her university studies on hold to care for Ms Y, who at the time received no social care support. Miss X asked the Council to provide help for Ms Y.
14. The Council contacted Ms Y in early 2019, but notes show that she refused any social care help.
15. Miss X contacted the Council again. A social worker visited Ms Y’s home to complete an assessment of her needs in May 2019. However, Ms Y was not home. Miss X explained that her mother had been taken to hospital by paramedics. The social worker agreed to visit again once Ms Y was back home.
16. One week later, the social worker called Ms Y to arrange an assessment. Ms Y explained that she had been admitted to hospital again following the recent discharge. The social worker agreed to visit Ms Y in hospital on 17 June to complete the assessment.
17. The social worker completed the assessment as planned. The assessment noted the support provided by Miss X. It said:

“[Miss X] had to have a gap year to assist me. She can no longer continue to support me. The only other family I have is my sister and we hardly see each other.”

“My youngest daughter has 'put her life on hold' to support me. She can no longer do so, she turns 21 this month and needs to go back to uni.”

18. The Council did not offer to complete a carer’s assessment for Miss X.
19. After assessing Ms Y, the Council decided she had eligible needs, according to the Care Act, and needed a package of domiciliary care to meet those needs. The Council arranged for Ms Y to receive 9 hours and 15 minutes of care from an agency each week following her discharge from hospital.
20. The hospital discharged Ms Y on 21 June 2019. This is when her care package started. However, the contemporaneous case notes show that Ms Y sometimes turned the carers away: “[Ms Y] kept turning [sic] cancelling her service late until 2nd July 2019 when she received support with shopping. Further cancellations were done late which all resulted in [Ms Y] been [sic] charged.”
21. On 24 July 2019 Ms Y contacted the Council to discuss the possibility of receiving direct payments instead of the commissioned care. Ms Y’s oldest daughter, Mrs W, also emailed the Council on this date to relay her concerns about Ms Y’s wellbeing and her increasing needs.
22. The Council’s notes show a social worker called Ms Y five days later to have a general discussion about direct payments. The social worker also agreed to complete a ‘welfare visit’ on 31 July 2019.
23. At this point Ms Y had been home from hospital, with a package of domiciliary care, for approximately six weeks. The Council was therefore required to complete a review of Ms Y’s care and support. The notes show that no such review took place. Instead, the social worker completed the welfare visit as planned and had a general discussion with Ms Y about her current circumstances.
24. The Council then assigned a different social worker to Ms Y’s case in September 2019. The new social worker visited Ms Y over the course of two days to complete a review of her care needs on 27 and 30 September 2019. That review recommended a large increase in the care package: from 9 hours 15 minutes to 19 hours per week. The primary reason cited for the increase was the unavailability of Miss X:

“[Ms Y] was getting some support from her daughter, but that support is not accessible now due to her daughter moving into University residential accommodation. For this reason [Ms Y] may require more support than before”

“[Ms Y] mentioned that previously she was relying heavily on her younger daughter for support however, her daughter is now suffering from severe anxiety and has also relocated due to University education. As a result she is no longer been [sic] supported by her daughter”

“… reviewing [Ms Y’s] support needs, it is obvious that she requires more support than she is presently receiving…. Initially an assessment was considered however upon my visit and the discussions we had so far, [Ms Y’s] needs are the same but what has changed is that her support network from family members have reduced”

25. The Council’s funding panel did not agree to the full 19 hours, as proposed, but instead for 16 hours of weekly care comprising of two visits per day. Ms Y received the increased budget, via direct payments, from 30 September 2019.

Was there fault causing injustice?

26. When assessing an adult for eligible care needs, the Care Act statutory guidance is clear that councils must consider all the adult’s needs, regardless of any support already being provided. Any care already provided by a carer should not influence eligibility determination, but it can be considered at the care and support planning stage. This is because the Council is not required to meet any needs which are already being met. However, this only applies if the carer “…is willing and able to do so…. And the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing”.
27. The June 2019 assessment of Ms Y clearly shows Miss X’s inability to continue caring for her mother; partly due to her commitments at university, but also because of the impact on her own life. Just because Miss X was, at the time, living with Ms Y does not mean that she was willing and able to provide care. Ms Y made clear that this was not the case. Therefore, the June 2019 assessment is based on incorrect information because it wrongly assumed that Miss X could continue providing care. As a result, it concluded with a much lower personal budget and consequently Ms Y had unmet care needs for three months.
28. Further, after wrongly assuming that Miss X was willing and able to provide care, the Council did not complete a carer’s assessment. But Miss X has not made a complaint in her own right and so I have not investigated this point further.
29. The Care Act guidance also makes clear that: “The first planned review should be an initial ‘light touch’ review of the planning arrangements 6-8 weeks after sign-off of the personal budget and plan”. The Council’s review of Ms Y was delayed. The visit on 31 July was to check on Ms Y’s welfare, and in my view, this does not constitute a light touch review, as the Council suggests. There was no consideration of the care package despite the concerns previously raised by Ms Y’s oldest daughter. This is fault.
30. Consequently Ms Y did not receive the care and support she was entitled to: firstly because the June 2019 assessment contained incorrect information about Miss X, and secondly because the Council’s review of that plan was delayed and so there was a lost opportunity to amend it sooner.
31. Ms Y experienced injustice for three months as she received only around half of the support she needed. Ms Y has noted that a friend and Miss X stepped in to provide care when necessary. The shortfall in provision, in my view, caused distress to Ms Y which the Council has agreed to provide a remedy for in line with our guidance, which says:

“A complainant may have been without services during the period of fault – usually care services – which would have been bought using direct payments. The remedy for this depends on the level of injustice caused by not having these services and should be assessed in line with our guidelines on distress and harm. This may amount to more than the value of the direct payments, if a particularly vulnerable complainant had critical needs and no alternative support. It may amount to less, if needs were met by friends and family (although they may have their own, separate injustices as a result)”

32. When deciding the remedy for Ms Y, I must also consider that Ms Y sometimes refused care services and eventually cancelled all Council funded services in December 2019. Therefore, I consider £500 is an appropriate payment in recognition of the distress caused by the fault identified. The Council has agreed with my recommendation.

Complaint b) failed to consider Ms Y for reablement care

What should happen

33. Intermediate care and reablement support services can be provided to people after they have left hospital or when they are at risk of having to go into hospital. They are time limited and aim to help a person to preserve or regain the ability to live independently.
34. Regulations say councils must not charge for the first six weeks of intermediate care or reablement services. They may make a charge where services are provided beyond the first six weeks but should consider continuing to provide them without charge because of the preventive benefits.

What happened

35. Ms Y complained to the Council when she received an invoice seeking her client contribution for the care she received in the first six weeks following her discharge from hospital. Ms Y told the Council she received reablement care and so she should not be charged for the period in question.
36. The social worker made enquiries with colleagues both at the Council and hospital. She established that Ms Y had not been assessed or provided with any reablement support and so the invoice was correct and payable by Ms Y.

Was there fault causing injustice?

37. In response to my enquiries the Council said that Ms Y’s condition is of a long-term nature and requires long term support. Ms Y has been into hospital, with the same condition, many times this year and last. Therefore, hospital staff did not make a referral for Ms Y to receive an assessment for reablement care.
38. The ‘National Audit of Intermediate Care’ defines reablement as “…services that help people live independently, provided in the person’s own home by a team of mainly social care professionals.”
39. It is evident from the files I have seen that Ms Y is unable to live independently due to the progressive nature of her condition and her declining mobility. She needs daily support in the home, and this is unlikely to change. I therefore find no fault with the Council for failing to assess Ms Y for reablement services because, in the Council’s professional judgement, Ms Y needed long-term care and support. Ms Y was not, therefore, a candidate for reablement services.

Complaint c) failure to backdate Direct Payments to the appropriate date, and invoicing for Direct Payment arrears

What should happen

40. Direct payments are a means of paying some, or all, of the personal budget to the person to arrange and pay for their own care. They are intended to provide independence, choice and control over the way needs are met and outcomes achieved.
41. Councils must provide information to people so that they are aware they can ask for a direct payment if they would like one. People must not be forced to take a direct payment against their will. Usually direct payments will be requested during care planning but can be requested any time and should be dealt with through “clear and swift” processes.

What happened

42. Ms Y requested direct payments in late July 2019. Her social worker made enquiries with the direct payment team in early August, and an officer visited Ms Y at her home on 4 September. Ms Y signed a direct payment agreement, the start date for which was 30 September.
43. In her complaint to the Council, Ms Y said that her direct payments should be backdated to June when she returned home from hospital. The Council disagreed and said that 30 September was the earliest date from which it could begin the agreement.

Was there fault causing injustice?

44. There is no fault in this part of the complaint. This is because the Council commissioned domiciliary care services from 21 June to 30 September. The Council’s records show that Ms Y first requested direct payments in July. In my view the Council arranged for the provision of direct payments in a reasonable timescale and agreed to backdate the payments to the point when commissioned services ended.
45. It was not possible to backdate the direct payments further because this would have overlapped with the domiciliary care being provided. Ms Y was not entitled to receive commissioned services, as well as direct payments, at the same time.

Agreed action

46. Within four weeks of my final decision, the Council will:
• Apologise for the fault identified in this statement and pay £500 to Ms Y for the distress caused by the fault in its assessment of her, and the delay in reviewing her needs. In line with our remedy guidance, the Council is entitled to offset the financial remedy against any outstanding arrears.

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Final decision

47. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman