Summary: Mr X complained the Council failed to appropriately assess his need for care and support. There was no fault in the way the Council assessed Mr X’s care needs.

The complaint

1. Mr X complained the Council has failed to appropriately assess his need for care and support and is therefore failing to meet his needs.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Mr X has raised concerns about the way the Council has assessed his needs over several years. It was open to Mr X to complain to us at the time if he had concerns about the way the Council assessed his needs in previous years. I have considered what has happened since the Council assessed Mr X’s needs in April 2019.
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)

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How I considered this complaint

5. I have considered the information provided by Mr X and have spoken with him on the telephone. I have considered the Council’s response to my enquiries including copies of Mr X’s needs assessments and the Council’s case records.
6. I have considered the Care Act 2014 and the Care and Support Statutory Guidance.
7. I gave Mr X and the Council the opportunity to comment on a draft of this decision and considered any comments I received in reaching a final decision.

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What I found

The Law and Statutory Guidance

8. 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. They must provide an assessment to all people regardless of their finances or whether the local authority 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. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:
1. The needs must arise from or be related to a physical or mental impairment or illness.
2. Because of the needs, the adult must be unable to achieve two or more of the following:
1. Managing and maintaining nutrition;
2. Maintaining personal hygiene;
3. Managing toilet needs;
4. Being appropriately clothed;
5. Being able to make use of the adult’s home safely;
6. Maintaining a habitable home environment;
7. Developing and maintaining family or other personal relationships;
8. Accessing and engaging in work, training, education or volunteering;
9. Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
10. Carrying out any caring responsibilities the adult has for a child.
3. Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.
10. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.
11. Councils must take into consideration a person’s preferences. However, recent case law (R (Davey) v Oxfordshire County Council) found while a claimant’s preferences had to be taken into account, these had to be distinguished from their needs for care. The court of appeal found the Council’s duty is not to achieve the outcomes which the individual wishes to achieve but to assess whether the provision of care and support would contribute to those outcomes. The wishes of the individual may be a primary influence, but they do not amount to an overriding consideration.

Direct payments

12. The personal budget is the amount of money allocated to meet someone’s identified care and support needs. The individual can choose to receive the personal budget as a direct payment. A direct payment gives the individual independence, choice and control by enabling them to arrange and pay for their own care and support.

What happened

13. Mr X has social anxiety and autism. In 2018 Mr X went to university and received a care package as a direct payment for 30 minutes a day plus four hours of social inclusion time per week.
14. In March 2019, a Council officer reviewed Mr X’s care needs. He was now attending a different university where they noted he was well supported in catered accommodation. They noted Mr X used his four hours of social inclusion support to go to the cinema or a local country park. They noted Mr X had negotiated support from the University.
15. The assessment noted Mr X believed he would benefit from a shared lives placement (where those with physical or mental disabilities share a carer’s home). The Council officer did not see the need for this level of support and noted this could ‘undermine the impressive progress towards independence he has already gained. It could also significantly reduce the benefits from his university experience if he has less time on campus, sharing the environment with other students’. They noted this could also create a significant risk of interpersonal conflict with others, because of the close living environment.
16. They noted Mr X would have significant difficulty managing his dietary needs himself. As he was in catered university halls this need was met. Mr X continued to have eligible needs for developing and maintaining relationships and making use of necessary facilities or services in the local community. They recommended an increase in Mr X’s social support hours to eight hours a week to promote increased socialisation with other students on campus activities.
17. The Council did not implement the proposed increase in support hours as Mr X returned home during the university holidays. The Council officer met with Mr X and his mum in August 2019. Mr X had decided not to return to university. Mr X had not used his direct payments for 30 minutes a day support but had used the social inclusion hours. The Council officer considered Mr X did not need the daily support and agreed with Mr X to stop the direct payments except for four hours a week for social support.
18. The Council officer visited Mr X and his mum in late September 2019. Mr X’s mum was unable to continue supporting him and said he could not stay there after the New Year. The officer noted Mr X had not used his direct payments to pay for any social support. Mr X was attending regular social activities at a local support group. The officer advised Mr X to find an agency and use the support or they would review it. Mr X started to use his support hours for accompanied cinema trips.
19. In December 2019, the Council officer met with Mr X to reassess his needs. Mr X’s mum and sibling were also present. They noted his family provided support with meals and prompting to enable him to achieve a daily routine. They noted Mr X had around £6,000 on his direct payment card which he had not used. Mr X agreed the Council could recover this money. They considered Mr X had shown at university that he could manage his needs with minimal support. They noted Mr X could maintain his own personal hygiene without support or prompting. He would benefit with support to ensure he was appropriately clothed and with planning his meals and maintaining a habitable home environment. They noted Mr X was able to access the community independently and attended local support groups. He was using his direct payment to access the cinema. However, the assessor considered this did not promote his social functioning or social anxiety issues. They referred Mr X to a local charity to provide more focussed social activity support. They remained of the view Mr X did not require residential or supported accommodation. They recommended Mr X receive direct payments for a 30-minute visit per day and they would refer him to the local charity for social access support. Mr X still wanted to move to a shared lives placement. The assessor's view was that Mr X would lose a range of skills and independence if he was provided with that level of care.
20. Mr X moved into temporary homeless accommodation in January 2020 and then to a bungalow in April 2020.
21. The Council officer reassessed Mr X’s needs in May 2020. They noted Mr X was managing and maintaining his personal care needs and daily living activities without support. He was able to prepare food and launder his clothes. He used the local shops to purchase items. He had been unable to attend his regular support group social activities due to COVID-19 restrictions. He had set up relevant direct debits for utilities and there was no evidence he was unable to maintain his living environment.
22. The Council officer noted Mr X had the skills to support and sustain his abilities. He continued to doubt himself and his ability to manage independently but the evidence was that Mr X did not need support or provision from the Council. The officer concluded Mr X did not have any eligible social care needs.

Findings

23. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the Council's role. The Ombudsman's role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. Mr X and his mum participated in the assessments. The assessments considered Mr X’s views and the officer’s observations from their visits.
24. The Council officer decided Mr X could achieve the outcomes without a care package. Mr X does not agree with the decision, but I cannot question a decision just because someone disagrees with it. I must consider if there was fault in the way the decision was made. The Council assessed Mr X’s needs in line with the Care Act and Statutory Guidance. The assessments are detailed and set out Mr X’s needs and how these may be met. There was no fault in the process.
25. People may express a wish for a particular service but the Council only has to have due regard to their wishes. It must meet their needs. Mr X believes he would benefit from a shared lives placement. The officer explained why they considered this would not be beneficial to Mr X and would not meet his needs. There was no fault in the way the officer considered this.

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Final decision

26. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman