Summary: Mr X complained about the way the Council assessed his care needs. The Council was at fault for not sending Mr X a record of the telephone assessment, delays in its complaints process and a failure to have due regard to its Equality Act obligations. It will apologise, pay Mr X £100 to remedy the distress caused, and remind staff about the duty to consider making reasonable adjustments.

The complaint

1. Mr X complained about the way the Council assessed his care needs and, in particular, that it failed to take into account his needs as a person with Autistic Spectrum Disorder (ASD). In addition, the Council failed to respond to his complaint within its published timescales. He said the Council’s failings caused him extreme distress.

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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. 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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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

6. I considered:
• the information Mr X and the Council provided; and
• relevant law and guidance, as set out below.
7. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Needs assessment

8. Councils must 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 involve the individual and where suitable their carer or any other person they might want involved. (Sections 9 and 10 of the Care Act 2014)
9. When deciding if the person has eligible needs, the council must take into account the criteria set out in the regulations. The criteria are:
• the needs must arise from or be related to a physical or mental impairment or illness;
• the needs must result in the person being unable to achieve two or more of the specified outcomes; and
• there is likely to be a significant impact on the person’s wellbeing as a result of not achieving those outcomes.

It must give the person a copy of its decision. (Care and Support (Eligibility Criteria) Regulations 2014)

Charging for care

10. Councils can charge for the care and support services they provide or arrange. Charges must only cover the costs the council incurs. (Section 14 of the Care Act 2014)
11. Councils carry out a financial assessment to decide what contribution the person must make towards the cost of their care and support. This takes into account their income and capital, and any expenses they have related to their disability. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

Reasonable adjustments

12. The Equality Act 2010 says a service provider must consider adjustments to its processes if it finds there are barriers to disabled people accessing a service. If the adjustments are reasonable, they must be made.

What happened

13. Mr X asked the Council for support in late November 2019. It arranged a telephone call to assess his adult care needs for early December 2019. Mr X said he was told the call would last 20 minutes but it actually lasted over an hour. He said he told the Council he could not manage a call lasting more than 20 minutes due to his ASD. He said he asked for a face-to-face meeting and to speak to a manager, but the Council refused. He says, as a result, he was unable to provide the Council with all the relevant information and it wrongly said it could not help him.
14. The Council’s record shows it considered whether he needed support to achieve two or more of the specified outcomes. It considered he needed support with shopping, which is covered by the outcome “managing and maintaining nutrition”. It also noted he had some difficulty with maintaining relationships and accessing the community but did not consider these were eligible needs.
15. The Council’s record states Mr X was unhappy when the officer told him he had only one eligible need so did not quality for help from the Council. The officer also said:
• if Mr X was unhappy with the outcome, he could have a full assessment to get more in-depth information;
• if he was unhappy with the phone call she could provide details of the complaint process; and
• they would speak to a manager about providing feedback the following day.
16. Following the call, the officer sent Mr X details of the National Autistic Helpline, which he has asked for during the call. The records show the case was referred to a manager, who reviewed the case the following day, but they did not call Mr X.
17. Mr X made a formal complaint about the telephone call. A manager called Mr X in late January 2020 to discuss the complaint with him. The Council sent a formal complaint response in early February, which:
• apologised for a manager not ringing the day after the assessment call, and explained why this did not happen;
• apologised for the assessment call taking longer than expected; and
• confirmed a face-to-face assessment visit had now taken place.
18. Mr X made a further complaint. He said the Council had not confirmed the initial needs assessment in writing and took too long to respond to his complaint.
19. The Council started a second needs assessment at a home visit in late January 2020. It completed the assessment in late February. The Council concluded he had two eligible needs: a need for help with shopping and a need for help to access the community. It said he needed support for four hours per week. It explained he would need to contribute to the cost of that support and that a financial assessment would be carried out the calculate the contribution.
20. The finance team contacted Mr X by phone to explain the financial assessment and obtain information from him to calculate his contribution. It asked Mr X to provide bank statements, which Mr X was not willing to do. When it told him what the contribution would be Mr X decided he did not want to receive support.

Reasonable adjustments

21. Mr X was unhappy that the assessment was carried out by telephone initially and said the Council refused a face-to-face meeting.
22. The Council said:
• a telephone assessment will only be used where the assessor establishes they can gather the information needed without face-to-face contact;
• itmay speak to an advocate or family member on behalf of the service user;
• the process allows for an assessor to send a list of questions in advance, in an accessible format to help the service user prepare for the assessment; and
• the service user must be given a record of their assessment.

Where the outcome is challenged or the assessor cannot get all the information they need, the case is referred for a more in-depth assessment.

My findings

Initial assessment

23. The record shows the officer carrying out the telephone assessment obtained appropriate information to decide whether Mr X had eligible needs. The officer decided Mr X was not eligible for help because he only had one eligible need. It is not clear why the officer decided this since the assessment did indicate he needed help with shopping (maintaining nutrition) and with maintaining relationships and accessing the community. It would have been better if the assessment had clearly stated why the last two did not amount to eligible needs. However, this is not sufficient to warrant a formal finding of fault and did not cause Mr X a significant injustice because the Council carried out a second assessment soon afterwards.
24. When Mr X said he was unhappy with the outcome, the officer said he could have a face-to-face assessment. That was in line with the Council’s procedures. The officer also explained how he could make a complaint.
25. The Council did not send Mr X a copy of its assessment to confirm its reasons for deciding he was not eligible for assistance. This was fault. This made it more difficult for Mr X to challenge the outcome. The Council should apologise for this.
26. Due to a misunderstanding a manager did not call Mr X the following day as the officer had promised. When he complained, a social worker was allocated to visit him and carry out a second needs assessment. Although it is regrettable that the misunderstanding occurred, I do not consider this is sufficient to warrant a formal finding of fault. In any case, there was no undue delay in carrying out the second assessment, taking into account the Christmas period intervened.

Complaints handling

27. Mr X complained on 9 December 2019. The complaints process says the Council will usually respond within 20 working days. I note the Council did try to phone Mr X twice before speaking to him on 28 January and it sent him a written response on 6 February 2020. The Council accepted it had delayed in sending the complaint response, which was fault. It has apologised. The delay added to the distress Mr X felt as a result of the way the initial call was handled.

Second needs assessment

28. I have found no evidence of fault in the way the Council carried out the second needs assessment.
29. The officer explained Mr X would need to contribute to the cost of the support proposed and the Council carried out a financial assessment without delay to calculate how much he would need to pay. I have found no evidence of fault in the way the financial assessment was carried out.
30. Mr X decided not to go ahead with the proposed support when he was told the amount of the contribution, which is his choice.

Reasonable adjustments

31. The Equality Act requires public sector organisations to proactively consider whether adjustments are needed and, if the adjustments requested are reasonable, it must make them.
32. I have seen no record to show the officer carrying out the telephone assessment checked whether Mr X needed any adjustments making to the way it usually handled assessments.
33. Mr X said he told them he could only speak for 20 minutes but there is no mention of that in the Council’s records. He also said he had been told in advance the call would be about 20 minutes but it was over an hour.
34. In addition, the Council’s policy says it can send questions in advance so service users can prepare for the telephone assessment, which may reduce the call time, but there is no evidence that happened in this case.
35. On balance, I am not satisfied the Council had due regard to its obligations under the Equality Act and that was fault. The initial failure to consider his need for an adjustment caused Mr X distress, which was compounded by the need to make a complaint and further telephone calls to resolve the situation, which added to his distress. The Council has apologised but I consider it should make a payment to remedy the distress, and the additional time and trouble caused.

Agreed action

36. The Council will, within one month of the date of the final decision:
• apologise to Mr X for failing to send him a copy of the needs assessment it completed by telephone. It has already apologised for the other faults I have identified; and
• pay him £100 to remedy the distress, and the time and trouble caused.
37. The Council will, within three months of the date of the final decision:
• remind relevant staff of its policy on sending questions in advance of telephone assessments to help service user prepare for the call;
• remind relevant staff of the need to check whether service users need adjustments making to the way they usually work; and
• consider whether staff need additional training to ensure the Council complies with its Equality Act obligations

The Council will report to us on the action it has taken.

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Final decision

38. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman