Decision : Upheld
Decision date : 24 Sep 2020
The Ombudsman's final decision:
Summary: A legal representative complains on behalf of her client that the Council failed to provide an assessment of care needs by a social worker qualified to level 5 in deafblind assessments, contrary to a court order. The Ombudsman finds no fault by the Council in using a level 3 qualified assessor to undertake the assessment which began before the court order was made. However, the assessment process was incomplete as no care and support plan was drawn up, and the Council then failed to progress reassessment by a more qualified assessor. Ms B was caused injustice as a result, for which remedy has been agreed.
- An advocate, whom I shall call Ms C, complains on behalf of her client Ms B that the Council failed to provide an assessment of care needs by a social worker qualified to level 5 to complete deafblind assessments, contrary to a court order made in September 2019. Ms B considers that this has caused her disadvantage.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered all the information provided by Ms C about this complaint. I made written enquiries of the Council and took account of the information it provided in response. I have had regard to the Ombudsman’s guidance on remedies.
- Ms B, Ms C and the Council had an opportunity to comment on my draft decision. I considered all comments received in response.
What I found
Legal and administrative information
Adult social care assessment, care planning and reviews
- 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. 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.
- The Care Act 2014 also gives local authorities a legal responsibility to provide a care and support plan. The plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.
- Section 27 of the Care Act 2014 gives an expectation that local authorities 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 the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
Statutory guidance on care and support for deafblind adults
- The Care and Support statutory guidance to the Care Act 2014 includes the following in relation to assessment of deafblind adults:
- Where the assessment relates to an adult who is Deafblind, it must be carried out by an assessor with specific training and expertise relating to those who are Deafblind.…. Training should be of Qualifications and Credit Framework or the Open College Network level 3, or above where needs are higher or more complex.
- Training and expertise should in particular include communication, one-to-one human contact, social interaction and emotional wellbeing, support with mobility, assistive technology and rehabilitation. The type and degree of specialism required should be judged on a case by case basis, according to the extent of the person’s condition and their communication needs.
What happened in this case
- Ms B is deafblind. She has other medical conditions including Ehlers Danlos syndrome, myofascial pain syndrome, osteoarthritis, and fibromyalgia.
- Assessment of Ms B’s care needs in 2018 was completed by an assessor qualified to level 6 in deafblind assessment. The assessor worked with a social worker who drew up the care plan. The records show that the assessor said they had been advised not to specify hours of care deemed appropriate as this gave rise to raised expectations, but she had provided a guideline in terms of frequency of support needed. From 30 July, Ms B’s care plan set out her assessed need for 49 hours a week support.
Assessment in 2019
- In 2019, Ms B was allocated another social worker to complete a reassessment. This officer had completed deafblind training and was qualified to level 3 in deafblind assessment. Ms B complained that the assessment should be completed by an assessor qualified at a higher level, in recognition of her complex needs. The Council disagreed and the assessment continued.
- On 17 September 2019, the Council received the judgement from court proceedings relating to the care of Ms B’s daughter. On 11 September 2019, the judge had ordered that any social care assessment for Ms B should be carried out by a social worker qualified to level 5 in deafblind assessment.
- The social worker who had been completing Ms B’s assessment made reference to the judge’s comments in the assessment, stating:
“On 11.09.19 the Family Court Judge instructed that Ms [B]'s Adult Social Care assessment is to be completed by a level 5 trained deaf/blind assessor. As such this assessment has been finalised with no recommendations and a support plan will not be generated. A level 5 trained deaf/blind assessor is to be instructed to complete a further deaf/blind assessment with Ms [B] and following this, recommendations to her level of care will be made and a support plan generated”.
- The assessment document was provided to Ms B’s representative at the beginning of October 2019.
- The Council then made enquiries with the National Register of Communication Professionals working with Deaf and Deaf Blind People, with a view to requesting an assessor for the deafblind trained at level 5. The Council was advised that all of that organisation’s assessors are trained at level 6. Following this, the Council contacted the court, confirming that Ms B would be contacted after the court proceedings were concluded and asking the court to consider that it has assessors trained at level which it considered a sufficient level of qualification to meet its Care Act 2014 duties to carry out specialist assessment for people who are deafblind. The Council did not receive a response from the Court however, and has confirmed it will abide by the order.
- In November 2019, another new social worker was allocated to Ms B. The records state that the need for a level 5 qualified assessor was being actioned, but noted: “There is no immediate requirement for an unscheduled reassessment as I've not been made aware that her Care Act needs have changed, but she is due a formal review. She does have health needs however, and we need to establish those in order to apply for health funding”. The Council says the social worker was allocated to complete two specific tasks: to offer support to Ms B with her care agency, as her regular carer was leaving, and to complete the joint funding application to health. The social worker sent Ms B an email in January 2020 advising health funding had been secured and asking whether Ms B required any further support from adult social care at this time. The Council did not receive a reply.
The Council’s current position
- The Council states as it received no reply from Ms B to its email in January 2020 it had nothing to indicate that she required support or that her needs had changed. The Council notes that Ms B has other professionals working with her including a social worker from the NHS Trust providing psychological support, and from an occupational therapist. The Council says that having neither a reply from Ms B nor a referral for reassessment it cannot arrange an unscheduled review, so the next reassessment would be the scheduled 2020 annual review. The Council says the court order did not specify that the Council had to complete a reassessment, only that any such assessment should be completed by a level 5 qualified assessor.
- The statutory guidance to the Care Act 2014 refers to assessors for the deafblind being qualified to level 3, or above where needs are complex. The statutory guidance does not define complex needs. SENSE, a disability charity which works with people with complex disabilities, refers to people with more complex needs as those who were born deafblind, have changing or deteriorating needs, or additional needs, such as dementia or a learning disability. The Council says that when Ms B’s assessment was competed in 2018, it had no workers trained to level 3 in deafblind assessment and it therefore worked with a more qualified assessor from SENSE. However, by the time of the 2019 assessment the Council had staff trained to level 3, to meet the minimum statutory requirement for deafblind assessment, and it considered Ms B’s assessment could be appropriately completed by an officer qualified at that level. The statutory guidance allows for a level of professional judgment in determining whether needs are ‘complex’ and therefore require a more qualified assessor: I cannot therefore conclude that the Council’s failure to engage a more qualified assessor for Ms B’s assessment was fault. A further factor is that the assessment began, and was largely completed, before the court order was made.
- However, the assessment process for 2019 was not completed, because there was no outcome: no care plan was produced. As set out in paragraph 14 above, the social worker noted in the assessment document that this was due to the instruction of the court that it was to be completed by a level 5 qualified assessor.
The entry in the assessment document raised the expectation that an assessor qualified at level 5 or above would be instructed and the assessment process for 2019 fully completed, including production of a support plan. This has not happened.
- In recognition of the injustice caused to Ms B by the raised expectation referred to above, and time and trouble taken in pursuing the complaint, I recommended that within four weeks of the date of the decision on this complaint the Council:
- Issues her with a formal written apology;
- Pays her £150; and
- Begins the process of engaging a deafblind assessor qualified to level 5 or above, and thereafter progresses reassessment to completion including the production of a care and support plan, without undue delay and keeping Ms B informed of progress as appropriate.
- The Council has agreed to my recommendations.
- I completed my investigation on the basis set out above.
Investigator's decision on behalf of the Ombudsman