Summary: Miss X complains about the Council’s decision to reduce her care package. She also complains the Council contacted her doctor about her mental health without consent. We find fault with the Council for not completing a care assessment properly and for not meeting all of Miss X’s eligible needs. We also find fault with the Council for contacting Miss X’s doctor without consent, but this did not cause a significant injustice.

The complaint

1. Miss X complains about the Council’s decision to reduce her care package. She says the Council changed her care package four times in one year and has significantly reduced the care hours she receives. She also complains the Council contacted her doctor about her mental health without consent. Miss X says the Council’s actions have caused her distress and caused her health to worsen.

Back to top

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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

5. I spoke with Miss X and considered the information she provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent a draft decision to Miss X and the Council and considered their comments.

Back to top

What I found

Legislation and guidance

8. Councils must carry out an assessment for any adult who appears to have a need for care and support. Decisions made by councils about whether someone’s needs are eligible for care and support must be made on the basis of an assessment. (The Care Act 2014)
9. The purpose of an assessment is to identify the person's needs, how they impact on the person’s wellbeing, and the outcomes the person wishes to achieve in day-to-day life. Assessments provide a full picture of the person’s needs. (Care and Support Statutory Guidance, Sections 6.5, 6.9, 6.12 and 6.13)
10. In considering whether an adult with care and support needs has eligible needs, councils must consider whether:
• The adult’s needs arise from or are related to a physical or mental impairment or illness.
• As a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes (described below).
• As a consequence of being unable to achieve these outcomes, there is a significant impact on the adult’s wellbeing.
11. The outcome areas are:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs.
• Being appropriately clothed.
• Being able to make use of the home safely
• Maintaining a habitable home environment: councils should consider whether the condition of the adult’s home is sufficiently clean and maintained to be safe.
• Developing and maintaining family or other personal relationships: councils should consider whether the adult is lonely or isolated, because their needs prevent them from developing or maintaining personal relationships.
• Accessing and engaging in work, training, education or volunteering.
• Making use of necessary facilities or services in the local community including public transport and recreational facilities or services.
• Carrying out any caring responsibilities the adult has for a child.
12. If the council identifies eligible needs though an assessment, it has a duty to meet those needs. (The Care Act 2014, section 18)
13. 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.
14. 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.
15. 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.

What happened

16. Miss X has a long-term neurological condition which affects her mobility and muscles. Miss X’s condition causes fluctuating needs. She lives with two of her children and her partner. The back of Miss X’s property has been adapted to meet her needs.
17. In April 2019, the Council completed a care plan which set out Miss X had eligible needs in all outcome areas. It also set out the Council would provide Miss X with support for:
• personal care;
• meal preparation;
• essential cleaning of the home
• accessing the community; and
• parenting, such as getting the youngest child ready for school and taking them to school.
18. The Council provided 21.5 hours of support each week to meet Miss X’s eligible needs. This included hours for a personal assistant to support Miss X. The Council later amended the care plan and increased Miss X’s support hours to 26.5 hours a week.
19. The records showed the Council arranged for a care agency to provide the support hours.
20. In May 2019, the records showed Miss X cancelled the visits from the care agency. The records noted Miss X was unhappy with her carers and felt the carers were not meeting her needs. Miss X told the Council she would recruit a personal assistant. The social worker asked Miss X what support she would need in the meantime, but it was noted Miss X said she would manage.
21. The social worker tried to arrange a meeting between Miss X, the Council and the care agency to discuss the problems Miss X had. However, Miss X cancelled the meeting that was arranged. The evidence suggests Miss X received no support in May 2019 after she cancelled the care agency visits.
22. In June 2019, the Council completed a reassessment of Miss X’s care needs. The case records noted Miss X told the social worker mornings were the worst time of day for her. She said on a typical day she struggles in the morning to undertake all tasks. It was also noted Miss X told the social worker she was struggling to keep on top of running the house and needed support after school.
23. The assessment noted Miss X could not shop independently and that Miss X had some difficulty with:
• Preparing meals and drinks, eating, and drinking.
• Washing herself.
• Washing and drying clothes.
• Getting to the toilet and managing her continence.
• Dressing and undressing.
• Getting out of bed and getting up from sitting.
• Using the stairs.
• Keeping the house clean and safe.
24. The Council completed Miss X’s care plan in July 2019. The care plan noted Miss X had eligible needs in the following outcome areas:
• Maintaining a habitable home environment
• Making use of necessary facilities
• Carrying out caring responsibilities for a child.
25. The care plan set out the Council would provide around 13.5 hours a week of child minder support to help Miss X with her youngest child. The Council removed the rest of the support hours Miss X received to support her.
26. The case records noted the Council did not consider it was suitable for Miss X to have a personal assistant as Miss X was able to meet a lot of her needs. It noted that the Council discussed with Miss X that she had found it intrusive to have carers coming in and out of her home. The Council noted there was agreement with Miss X that the care package with the carers had not worked because it caused Miss X stress and anxiety.
27. At the end of July and August 2019, there is evidence the social worker tried to work with Miss X to provide support in other ways, such as through assistive technology. Miss X turned this down due to the cost and because she said she could not use it effectively.
28. There is also evidence the social worker discussed Miss X’s needs with her doctor and nurse. There is no record of the Council asking Miss X’s doctor for any information regarding her mental health. The Council said there was no evidence it had asked Miss X for consent to contact her doctor.
29. In September 2019, Miss X complained about the Council’s reduction of her support hours. Following her complaint, the Council agreed to provide Miss X with three hours for a personal assistant. This was to support Miss X with maintaining her home and shopping.
30. In October 2019, the Council offered Miss X a short-term assessment and reablement team intervention (START). The purpose of this was to identify what Miss X could do and what areas could be worked on. The Council’s records noted Miss X decline this as the team could only offer an early morning assessment time. Miss X said she did not decline it but was advised this option would not benefit her. Miss X did not specify who told her this.
31. In mid-October 2019, the Council reassessed Miss X. The assessment noted Miss X was not independent with shopping and getting to and using community leisure facilities. The assessment also noted Miss X had significant difficulty, or some difficulty, with:
• Washing herself
• Dressing and undressing.
• Getting to the toilet and managing her continence.
• Preparing meals and drinks, eating, and drinking.
• Washing and drying clothes.
• Get in and around her home.
• Getting out of bed.
• Using the stairs.
• Keeping the house clean and safe.
• Meeting and making friends.
32. The Council completed Miss X’s care plan in October 2019. The care plan noted Miss X had eligible needs in the following outcome areas:
• Maintaining a habitable home environment
• Making use of necessary facilities
• Carrying out caring responsibilities for a child.
33. The care plan set out the Council would continue to provide 13.5 hours of child minder support. The Council also provided Miss X with support hours for cleaning, community support, and personal care. Totalling 6.5 hours a week.
34. In December 2019, the Council reassessed Miss X. The Council’s assessment noted Miss X had significant difficulty, or some difficulty, with the same areas as in the October 2019 assessment.
35. In mid-December 2019, the Council met with Miss X to discuss her assessment. The Council said it needed to complete a START assessment, which would take place over two weeks, so that it had a better idea of Miss X’s needs. This was due to Miss X’s condition causing her needs to fluctuate depending on if she was having a good or bad day. Miss X agreed to this.
36. The Council completed the START assessment in mid-January 2020. The Council’s occupational therapist observed Miss X’s capabilities over two weeks. The Council completed the support plan in February 2020.

Analysis

37. In April 2019, the evidence shows Miss X had a care plan which set out the Council would provide 26.5 hours of support per week to meet Miss X’s eligible needs. The Council was not able to provide a copy of the assessment which led to this care plan.
38. There is evidence Miss X cancelled the care agency that was providing her with the support hours in May 2019. The evidence also suggests Miss X received no support in May 2019 after she cancelled the care agency.
39. The records outlined a discussion between the social worker and Miss X about how it was not appropriate for Miss X to have a personal assistant as she was able to meet most of her needs and because the care package had not worked in April 2019.
40. However, the evidence shows the Council’s assessment in June 2019 noted Miss X had some difficulty in most outcome areas and noted Miss X could not shop independently. The evidence also shows Miss X told the social worker she struggled in the morning and to keep on top of running the house. There is no evidence Miss X told the Council her abilities or condition had improved.
41. Miss X’s care plan in July 2019 noted she had eligible needs in three outcome areas. However, the care plan only provided support to meet Miss X’s needs in one outcome area, carrying out caring responsibilities for a child.
42. The evidence shows the social worker was trying to put in place support in other ways, not just through a traditional care package. However, these were not successful. This effectively means some of Miss X’s eligible needs were not met until October 2019, when Miss X was reassessed. The law is clear that if the Council identifies eligible needs, it has a duty to meet those needs. This is fault.
43. Further, it is not clear from the evidence what had changed between April 2019 and June 2019 to cause Miss X’s eligible needs to change. The evidence available shows Miss X told the Council she still struggled with most tasks and that she needed support.
44. The case records do suggest Miss X went without any support in May 2019. However, if this impacted on the social worker’s assessment of Miss X’s eligible needs, this information should be clearly highlighted in the assessment.
45. Therefore, it is not clear from the evidence how the Council made its decisions as there is no evidence to suggest Miss X’s condition or abilities had improved since April 2019. Therefore, I am not satisfied the Council completed its assessment of Miss X’s care and support needs in June 2019 properly. This is fault.
46. I also find fault with the Council for not considering a light touch review following the implementation of the new care plan in July 2019. Given the large reduction in support hours, it would have been appropriate for the Council to review the care plan within six to eight weeks to see how Miss X was coping without the support hours she had previously received.
47. I consider the faults identified has caused Miss X an injustice. I cannot say on balance what support the Council would have put in place had it completed its assessment properly in June 2019. This has therefore caused some uncertainty as to whether Miss X received the support she needed. I also consider the faults identified caused Miss X some distress and anxiety regarding how her eligible needs were going to be met by the Council.
48. The October 2019 assessment shows the Council had assessed Miss X to have greater difficulty in some outcome areas, when compared with the June 2019 assessment. The assessment notes Miss X’s views on the things she struggled with and how things had changed since the June 2019 assessment.
49. Therefore, I do not find fault with the Council’s October 2019 assessment as it is clear from the evidence how the Council made its decisions. The Council was entitled to decide what Miss X’s eligible needs are as it has properly assessed Miss X.
50. I also do not find fault with the Council’s care plan in October 2019. This is because the Council provided some support hours to meet Miss X’s other eligible need. Therefore, I am satisfied the Council met its duty to meet the eligible needs it identified during the October 2019 assessment.
51. The Council has recently completed a START assessment for Miss X and issued her with a new care plan. These matters occurred after Miss X submitted her complaint to the Ombudsman. Therefore, I have not considered the Council’s START assessment or most recent care plan.
52. If Miss X is unhappy about her most recent care plan, it would be open to her to make a new complaint to the Council to consider. If she is unhappy with the Council’s response, she can make a new complaint to the Ombudsman.
53. Miss X said the Council contacted her doctor about her mental health without her consent. The available evidence does suggest the Council contacted Miss X’s doctor without her consent. However, there is no evidence the Council contacted Miss X’s doctor to discuss or get information about her mental health.
54. I find fault with the Council for contacting Miss X’s doctor without her consent or knowledge. The Council may have had good reason to contact Miss X’s doctor without her consent. However, it would be good practice for the Council to record its reasons for not getting Miss X’s consent before making its enquiries.
55. I acknowledge Miss X was unhappy the Council contacted her doctor. However, the Council did not share any sensitive information about Miss X and asked her doctor for relevant information to help inform its assessment. The Council also told Miss X it had contacted her doctor a few days later. Therefore, I do not consider the fault identified caused Miss X any significant injustice.

Agreed action

56. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Miss X for the injustice caused by the faults identified.
• Pay Miss X £500 to recognise the distress, anxiety, and uncertainty caused by the faults identified.
57. The Council should complete the above within four weeks of the final decision.

Back to top

Final decision

58. I find fault with the Council for not completing the June 2019 assessment properly and for not meeting all of Miss X’s eligible needs. I also find fault with the Council for contacting Miss X’s doctor without consent, but this did not cause a significant injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman