Summary: Ms X complained on behalf of her daughter, Ms Y, about the Council’s re-assessment of Ms Y’s care and support needs. The Ombudsman found no fault in the Council’s decision to re-assess Ms Y’s needs. There were problems in the assessment process, but the Council worked with Ms X to resolve them. The Council was at fault for delays putting in place an increase to Ms Y’s direct payments and for not offering Ms X a carer’s assessment. It agreed to offer a remedy.

The complaint

1. Ms X complained on behalf of her daughter, Ms Y, about the Council’s re-assessment of Ms Y’s care and support needs. Ms X said the re-assessment:
• was unnecessary.
• missed important information.
• did not put Ms Y at the centre.
• did not take account of Ms X’s views.
• did not properly consider risk.
2. Ms X also complained the Council used unqualified staff and agency social care workers, that one of the social care workers was unprofessional, that her direct payment increase was delayed, and that deprivation of liberty safeguards (DoLS) were not properly discussed with her.
3. The re-assessment process, and the continued need to provide a high level of care to Ms Y, has caused Ms X significant stress. In turn, this has caused Ms Y anxiety as she is sensitive to change.
4. The delay increasing Ms Y’s direct payments has meant Ms X was unable to recruit a personal assistant. Instead, she had to provide more care herself.

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The Ombudsman’s role and powers

5. 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)
6. 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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What I have investigated

7. I have investigated matters which took place from April 2019 onwards, after the Council decided to review Ms Y’s needs.
8. I have not investigated matters relating to Ms Y’s previous assessment in 2016, or the Council’s historic attempts to find supported living accommodation for Ms Y. These are old complaints.

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How I considered this complaint

9. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant’s representative.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014.
• The Care and Support Statutory Guidance (Updated 26 October 2018).
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

11. The aim of an assessment under the Care Act is to identify a person’s needs, how they impact on their wellbeing, and the outcomes the person wants to achieve in day-to-day life.
12. Where a person lacks capacity, the Council must carry out a supported assessment. Assessments should be completed by an appropriately trained assessor.
13. Where the Council identifies a person has eligible needs for care and support it must plan how to meet those needs. This can include making direct payments so that a person can arrange their own care.
14. Care plans must be kept under review, so that councils know whether a person’s needs have changed and whether a re-assessment is needed. Councils are expected to carry out a review at least annually. Reviews must not be carried out simply as a means of reducing a person’s care and support package.
15. Where a person gives care and support to another adult, and appears to need support, the Council must carry out a carers assessment. The Council must consider whether the person is willing and able to continue to act as a carer. It should consider the sustainability of their role by looking at future care needs of the person the carer looks after.
16. When the Council considers a person may be eligible for NHS Continuing Healthcare (CHC), it must notify the local Clinical Commissioning Group (CCG) so a CHC assessment can take place. CHC is ongoing care funded by the NHS for primary health needs.
17. Deprivation of liberty safeguards (DoLS) provide protection for people who lack the capacity to decide about their accommodation where such arrangements amount to a deprivation of their liberty.
18. The Supreme Court held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This includes placements in supported living. However, the safeguards only currently apply to hospitals and care homes. This means a deprivation of liberty in a community setting must be authorised by the Court of Protection.

What happened

19. I have summarised below some of the key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what happened.
20. Ms Y has severe learning disabilities, autism, and challenging behaviours. At the time of Ms X’s complaint, Ms Y received a direct payment of 68 hours per week and 56 nights respite care. Ms X used the funding flexibly with day care, personal assistants, and respite care.
21. Ms Y attended school as a residential pupil and then a residential college, before attending a specialist autism residential placement which was joint funded by the Council and NHS CHC.
22. Since 2007, Ms Y has been at home full time whilst waiting for a placement in supported living. She was assessed as needing 24-hour care, with 15 hours of one-to-one support.
23. Before Ms X’s complaint, Ms Y’s last assessment was in May 2016. Joint Council and NHS CHC funding was recommended by the assessor. Ms X was not told the outcome following this recommendation and Ms Y’s care package continued to be funded by the Council.
24. The Council allocated Ms Y’s case to social care worker 1 on 16 April 2019. Social care worker 1 was supporting the review team to clear its backlog of overdue reviews.
25. Social care worker 1 contacted Ms X and noted the Council needed to explore accommodation options. A referral to an accommodation officer was made on 14 May 2019. Due to Ms Y’s complex needs, the Council decided she needed an experienced social care worker. Social care worker 1 agreed to continue until a social care worker was allocated.
26. Social care worker 1 contacted the CCG on 7 May 2019 to ask for information about Ms Y’s CHC decision support tool checklist from May 2016.
27. The CCG later told the Council Ms Y’s CHC funding request in May 2016 showed only primary and secondary need, so no funding was awarded. The CCG said a new checklist could be submitted if needed.
28. A member of the Council’s accommodation team met with Ms X on 5 June 2019. Ms X agreed for Ms Y’s details to be added to the Council’s accommodation database. Ms X said Ms Y would be better suited to a shared house. Moving was not imminent, but Ms X wanted Ms Y to be considered for suitable homes which became available in future.
29. Social care worker 1 met with Ms X twice in June 2019. They discussed the assessment process and the continuing healthcare (CHC) checklist. Ms X said it was a priority to start planning for Ms Y’s future, preparing for a time when she no longer lives at home.
30. Social care worker 1 recorded that it was agreed she would complete a detailed assessment of Ms Y’s needs, and update her person led assessment (PLA). She would be away in July and recorded that Ms X agreed there was no rush to complete the PLA.
31. Ms X emailed social care worker 1 on 20 June 2019. She said she could no longer manage with the current level of support. If there were no supported living options, she asked to look at a residential placement for Ms Y. Social care worker 1 shared the email with the accommodation team.
32. Social care worker 1 visited Ms Y on 24 June 2019. She completed a mental capacity assessment in advance of carrying out a CHC checklist. She noted Ms Y did not understand the process and could not give consistent answers to questions.
33. Social care worker 1 completed Ms Y’s PLA and sent it to Ms X on 3 July 2019.
34. The Council’s accommodation team met on 17 July 2019 to discuss supported living options for Ms Y. The Council had sourced a two-bedroom flat which was being renovated.
35. Social care worker 1 met with Ms X and social care worker 2 on 31 July 2019. They agreed changes to Ms Y’s PLA. It was agreed social care worker 2, who was due to take over Ms Y’s case, would complete a personal budget, support plan, and risk assessment. It was also agreed social care worker 2 would look into increasing Ms Y’s direct payments so Ms X could pay more money to a personal assistant for Ms Y. Ms X had struggled to attract and retain a suitably qualified personal assistant due to the low hourly rate of pay she could offer.
36. Ms X visited the two-bedroom flat the Council found on 12 August 2019. It was not suitable and there were problems with access.
37. Ms X complained to the Council about Ms Y’s re-assessment. She said:
• Ms Y’s social care worker suggested a review was undertaken to try to reduce Ms Y’s care package.
• A review was undertaken despite there being no changes in circumstance.
• It should not have taken the Council over three months to ascertain there were no changes in circumstance.
• No one told Ms X the outcome of the Council’s recommendation for joint CCG funding in 2016.
• Best interests’ decisions should involve family and carers.
• Important information from Ms X was missing in Ms Y’s re-assessment.
• The Council removed information from Ms Y’s risk assessment, which placed her and carers at risk.
• Social care worker 2 said she did not have time to work with Ms X and Ms Y is not a priority. She should have met Ms Y and read her assessments to her to put her at the centre of her plan. Social care worker 2 did not read documents and was not prepared for meetings.
• The Council did not recognise Ms Y’s complex needs by refusing to consider increasing her direct payments to employ a personal assistant.
• The Council refused to consider a residential placement despite not being able to find suitable supported living accommodation for several years.
• The Council did not ask Ms X if she was willing and able to continue to care for Ms Y with the same level of support. Her GP has confirmed the stress is affecting her health.
38. The Council acknowledged there had been some errors in its service in its complaint response dated 5 September 2019. It said:
• Social care worker 1 thought her comments about the purpose review were taken out of context. A reassessment can mean changes to support, but this is based on individual assessed needs. Support can increase as well as decrease.
• Ms Y’s needs had not been reviewed since 2016. A full reassessment was needed as the pervious one was over two years old. This is in line with Council processes. It also said it was necessary and proportionate in this case.
• It spoke with the CCG but there was no evidence why Ms Y’s case did not go before the panel to discuss joint funding. To resolve this, a checklist would be completed straight away.
• It was sorry if the review process took longer than Ms X expected. Social care worker 1 had the case for 7 weeks before a new social care worker was allocated to investigate a more imminent move for Ms Y. The Council considered this an acceptable timescale.
• Social care worker 1 met Ms X to agree amendments to Ms Y’s assessment. It was agreed a new social care worker would complete the budget, support plan, and risk assessment. Social care worker 1 said some information was missed because it was not a finalised version of the assessment. These details would have been added to the final version.
• It agreed managing risk was important to keep Ms Y and her staff safe. Social care worker 2 would make an occupational therapy referral for a risk assessment about Ms Y travelling by car as soon as possible.
• Social care worker 2 was open and honest with Ms X about Ms Y’s case not being her priority, due to other safeguarding cases. The Council agreed social care worker 2 should have communicated her work demands differently.
• It agreed to increase Ms Y’s direct payment as a matter of urgency. It said the hourly rate will be based on Ms Y’s needs.
• It tried to find suitable accommodation for Ms Y. It identified various placements, but they were not considered suitable once visited. It said Ms Y’s accommodation should not be based on the type of placement. It should be the least restrictive way of supporting her needs. It said social care worker 3 will explore all types of accommodation in partnership with Ms X.
• It was sorry if Ms X felt her needs and wellbeing were not considered. It recognised it should have offered a carer’s assessment as part of the review, as she had not had one since 2015. It said social care worker 3 would carry out a carer’s assessment as soon as possible.
39. Ms Y’s new social care worker, social care worker 3, had several discussions with Ms X in September 2019. He also briefly met Ms Y. Social care worker 3 and Ms X spoke about an occupational therapy referral for Ms Y to assist her risk assessment around travel arrangements. They also spoke about a new CHC joint funding checklist for Ms Y and a carers assessment for Ms X. Social care worker 3 recorded that the present situation was not sustainable, and a plan was needed for Ms Y to move on.
40. During a telephone call with Ms X on 13 September, social care worker 3 recorded that he raised the subject of DoLS and that he intended to put Ms Y forward to be assessed for a deprivation of liberty order (DoLO).
41. Social care worker 3 met with Ms X and her family on 26 September 2019. They discussed Ms Y’s difficulties when travelling, and an increase to her direct payments so that Ms X could pay a higher rate for a suitable personal assistant. Ms Y’s CHC checklist was completed. Social care worker 3 offered Ms X a carers assessment. She said she would think about it.
42. On 30 September 2019, social care worker 3 met a member of the Council’s accommodation team to discuss Ms Y’s supported living options.
43. Social care worker 3 later confirmed to Ms X that the risk assessment she complained about had been removed from Ms Y’s file in October 2019. Social care worker 3 and Ms X agreed a new risk assessment.
44. Also in October 2019, social care worker 3 contacted the speech and language therapy (SALT) team. A SALT assessment was needed before the CCG would consider CHC joint funding.
45. Social care worker 3 spoke to Ms X on 18 November 2019. Ms X said Hoylands House, where Ms Y received respite care, was now only doing residential placements and she understood from social care worker 2 that Ms Y would not meet the criteria. Social care worker 3 considered Ms Y would meet the criteria, but that supported living would suit her better. Ms X argued that Ms Y had been on the waiting list for supported living for several years and nothing suitable had been found. Social care worker 3 then spoke with the accommodation team about supported living and respite placements for Ms Y.
46. On 24 December 2019, social care worker 3 looked into increasing Ms Y’s direct payments for an uplift to the hourly rate paid for a personal assistant. On 30 December, he told Ms X he was also pursuing an uplift to Ms Y’s payment rate for respite care as well.
47. Social care worker 3 also telephoned Hoylands House on 30 December about a residential placement for Ms Y. Hoylands House were doing building work but would have a vacancy once the work was completed in about six months.
48. Ms X contacted social care worker 3 on 8 January 2020. She was unhappy he had requested a DoLO for Ms Y without discussing it with her. Ms X considered it better to wait until a placement was found for Ms Y. Ms X confirmed that Ms Y’s family, as her attorneys, were against the application.
49. Social care worker 3 discussed the DoLO application with colleagues on 9 January. He was advised to wait, particularly as the Council was trying find a placement for Ms Y. Social care worker 3 was told he needed a letter from Ms Y’s GP, a capacity assessment, and then to consult Ms Y’s attorneys.
50. Ms X brought her complaint to the Ombudsman on 14 January 2020. She told me the Council would not let her discuss her complaint with the investigating officer. This would have been a helpful way forward and could have prevented the need to escalate her complaint to the Ombudsman. She confirmed the Council increased Ms Y’s direct payments on 1 January 2020. Her rate for respite care was also increased on 25 February 2020.

Response to my enquiries

51. The Council told me that, in 2018, it established the learning disability review team because reviews were not being done in line with the Care Act. The aim was to ensure people’s support met their needs and their needs had not changed.
52. Ms Y last had a review in 2015. A review was set for 2016. A continuing health care (CHC) decision support tool was commenced in 2016 but there was no record of an outcome for this. A direct payment was set up in July 2016 and Ms Y’s social care worker ended their involvement on 2 August 2016. There was no further contact until February 2018 when the Council wrote to Ms X to ask if Ms Y’s care package continued to meet her needs. The Council has no record of a response from Ms X.
53. The Council has assessors who are not qualified social care workers; however, they have other knowledge and skills, plus experience which adds value. The Council acknowledged two agency social care workers were allocated to Ms Y. One had been in the service 18 months and the other 3 years, so they were established members. It has since recruited experienced social care workers and has reduced its reliance on agency workers.
54. The Council told me it does feel, more recently, positive steps have been taken to support Ms Y into a long-term placement. It has been working closely with Ms X’s family to support this.
55. The Council recognised there were some historic delays arranging care and support for Ms Y and her family in the area of increasing the direct payment rate, but this has been resolved.
56. It said more recent delays in supporting Ms Y into a long-term placement have been caused by relations between Ms X and social care workers breaking down. The Council has identified a new social care worker for Ms Y. It said there were three different social work professionals involved in the past year, which caused delays.

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Analysis

57. The Council has a duty to carry out reviews of assessments, to make sure they are up to date and reflect a person’s changing needs. Ms X thought a full re-assessment was unnecessary because Ms Y’s needs had not changed. However, given Ms Y’s complex needs, and the fact her last assessment was more than two years ago, I do not criticise the Council for its decision to re-assess her.
58. The assessors the Council appoints do not have to be qualified social care workers, or permanent employees. They should however be suitably qualified for the job they are carrying out. The Council considers the people involved in Ms Y’s assessments had suitable knowledge, skills, and experience. While I appreciate Ms X’s concerns, I do not consider there is evidence of fault by the Council in this regard.
59. There were issues with Ms Y’s reassessment, however. Information which Ms X considered important was missed, she did not feel Ms Y had been put at the centre of things, and she was concerned about Ms Y’s risk assessment.
60. Ms X is right about the importance of the assessment being person centred, reflecting Ms Y’s needs and the views of her family. I can understand why social care worker 2’s actions caused Ms X distress. It appeared Ms Y was not a priority and that her case was not as important as other work commitments. This is at odds with what the Council told me about recognising Ms Y’s complex needs and that an experienced social care worker was needed. This led to a breakdown of trust and I can understand how Ms X lost faith in the commitment shown to Ms Y. The Council acknowledged social care worker 2 should have communicated her work demands differently. It is important interactions of that type are not repeated.
61. Ms X was sceptical about the Council’s reasons for carrying out a re- assessment, and the process did not always run smoothly. But I consider the Council has demonstrated it was trying to act in Ms Y’s best interests and to support her and her family. On the evidence seen, the Council did respond to Ms X’s concerns. Ms Y’s assessment was updated after a meeting with Ms X, a referral was made to the OH department and to a SALT so that Ms Y’s risk assessment could reflect the difficulties faced when travelling, and a new social care worker was allocated. As a result, a new CHC checklist was completed, added funding was eventually agreed, and the Council increased its efforts to find alternate accommodation for Ms Y.
62. I appreciate Ms X’s frustration at the amount of time it has taken the Council to find supported living accommodation for Ms Y. However, on the evidence seen, I agree with the Council that it has made progress in recent months to help find alternate accommodation. Ms Y has complex needs, and it is important the accommodation chosen is right for her.
63. On Ms X’s complaint about deprivation of liberty, social care worker 3 thought he discussed DoLS with Ms X. He recorded this in Ms Y’s file. However, considering Ms X and the family objected to the Council making a community DoLO application when they found out, it appears, on balance, that Ms X was unaware of social care worker 3’s intentions. This is something the Council should be mindful of in future, to ensure the actions it intends to take are clearly communicated.
64. Considering it was unknown at this stage whether Ms Y would be in a community setting (supported living), or in a residential setting, or at what point in the future that might be, it seemed premature for social care worker 3 to start the process. This was pointed out when social care worker 3 took advice following Ms X’s complaint. This is also something the Council should be mindful of in future.
65. The Council recognised it should have offered Ms X a carer’s assessment. This has now been offered, but it should have taken place sooner. A carer’s assessment should have been an automatic consideration of the review and re-assessment process. Ms X made clear to the Council that she was struggling, and this should have prompted the Council to offer a carer’s assessment. It was fault not to.
66. Once the Council agreed to increase Ms Y’s direct payments, the process stalled. In its complaint response, the Council said the payments would be increased urgently. It took about four months. That was an unreasonable delay and was fault. This prevented Ms X sourcing a suitable personal assistant and caused avoidable distress. It impacted on the care Ms Y received, on Ms X’s health, and on Ms Y’s family. That is their injustice.
67. The Council has made some welcome service improvements since Ms X’s complaint:
• It has reduced the number of people waiting for a planned review and improved oversight of the number of assessments that need to be carried out each year.
• It is reviewing the different roles needed for annual reviews, as well as reconsidering the remit and scope of the review team.
• It has recruited new permanent social care workers and reduced the number of agency staff from 7 to 3. It has a target of zero agency staff by March 2021.
• It is sourcing a new database to support its payment system and reduce manual input. This is to be implemented in January 2022.

Agreed action

68. Within four weeks of my final decision, the Council agreed to:
• Apologise and pay Ms X £500 to recognise the distress its faults caused to the family.
• Remind staff to communicate their work demands in an appropriate manner.
• Remind staff of the importance of making their intentions clear, and taking appropriate advice, when considering DoLS.

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Final decision

69. I have completed my investigation. I found no fault in the Council’s decision to re-assess Ms Y’s needs. There were problems in the assessment process, but the Council worked with Ms X to resolve them. The Council was at fault for delays putting in place an increase to Ms Y’s direct payments and for not offering Ms X a carer’s assessment. It agreed to offer a remedy.

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Investigator's decision on behalf of the Ombudsman