Summary: Mr X complained about the Council’s failure to provide overnight care and related matters. This caused distress and affected his well-being. We have found some fault in how the Council considered his request for services. Mr X’s medical condition was not recorded correctly and the Council did not properly consider how his fluctuating needs could be met. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Mr X, amend his assessment and review his care and support arrangements.

The complaint

1. Mr X complains about the Council’s failure to meet his eligible care needs and related matters. In particular, he complains:
1. the care needs assessment was not carried out correctly and contained inaccurate information.
2. the proposed care and support arrangements did not meet his needs.
3. the failure to provide overnight care, left him being unable to pay his increased rent because he was liable for the “bedroom tax”.
2. Mr X says the Council’s failure to provide appropriate support has caused significant distress and affected his well-being. He is concerned that he will be unable to manage when his fluctuating condition flares up.

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The Ombudsman’s role and powers

3. 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)
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. As part of my investigation I have:

• considered the complaint and documents provided by Mr X and the Council;
• considered the relevant legislation (Care Act 2014 and Care and Support Statutory Guidance - “the Guidance”);
• spoken to Mr X;
• sent my draft decision to both parties and invited comments on it; and
• considered comments received in response.

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What I found

Law and guidance

6. The Care Act 2014 introduced a requirement that local authorities should promote ‘wellbeing’ and signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’. The concept of meeting needs recognises that everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into. (Care and Support Statutory Guidance “the Guidance”)
7. A council must carry out an assessment of any adult who seems to need care and support. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9). Having identified eligible needs through a needs assessment, the council has a duty to meet those needs. (Care Act 2014, section 18)
8. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. (Care Act 2014, ss 24 and 25)
9. The care and support plan must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, s 26)
10. A person with eligible care needs can have a council arrange their care or, if they wish, they can arrange their own care using a direct payment. (Care Act 2014, s 31). The Guidance states the council should provide appropriate information and advice regarding the use of direct payments.
11. The Guidance states that where a person has fluctuating needs, the plan should make comprehensive provisions to accommodate this, as well as indicate what contingencies are in place in the event of a sudden change or emergency. This should be an integral part of the care and support planning process, not something decided when someone reaches crisis point.

What happened

12. I have set out below a summary of the key events. It is not meant to show everything that happened.
13. Mr X is in his sixties and has a number of serious health conditions including terminal lung disease, COPD and rheumatoid arthritis. His related symptoms fluctuate. On bad days he says he needs help with daily living and personal care, particularly at night.
14. Mr X lived in a one bedroom flat. He was keen to move to a larger property so he would have space for an overnight carer.
15. In January 2020, the Council carried out an assessment of his care needs. While Mr X told the Council he needed overnight care, the Council disagreed and said his eligible care needs could be met in other ways. Mr X refused these alternatives. The Council also carried out an occupational therapy (“OT”) assessment. This recorded, “Mr X feels a two-bedroom property has to be sourced to be able to cater for his irregular night time needs”. The OT also completed a Housing Needs Assessment. This stated, “It is essential that property has a second bedroom to allow for night time formal carers, as stated by care agencies and their policies”. This assessment was used by Mr X to support his housing application for a two-bedroom property.
16. In August 2020, Mr X was allocated a two bedroom property by the local housing authority. Now he had room to accommodate an overnight carer, he asked the Council to arrange this. The Council said it had to carry out another care needs assessment. This took place in September 2020. Mr X was assessed as having the following eligible care needs:

• Maintaining personal hygiene.
• Being appropriately clothed.
• Managing and maintaining nutrition.

17. To meet these eligible needs, Mr X was offered eight hours of support per week, to be used flexibly. This would be arranged via a direct payment and subject to a financial contribution of £88 per week from Mr X.
18. Mr X did not agree with the assessment or outcome for several reasons that I have summarised below (insofar as they are relevant to his complaint to the Ombudsman):

• In January 2020, Mr X said he was assessed as requiring a two bedroom property to accommodate overnight carers, This had still not been provided.
• Mr X was now liable for the “bedroom tax” that he could not afford.
• The assessment contained several inaccuracies, including about his diagnosis.
• The eight hours of care per week was inadequate and not properly explained.
• The Council had not proposed a support plan that would meet his fluctuating care needs. He had been admitted to hospital several times as an emergency patient and required care upon discharge. Mr X told the Council this could happen again and wanted reassurance care would be available if and when he needed it.
• Private care agencies contacted by Mr X required 48 hours notice to provide care. This would not meet Mr X’s unpredictable night time care needs.

19. Mr X says he is terminally ill and the current assessment and resulting support plan does not adequately meet his fluctuating need for care at night.
20. In response to his complaint the Council made the following points:

• Direct payments offered a flexible solution to meet fluctuating needs.
• Mr X’s health conditions were accurately recorded in the assessment.
• A review of the assessment was offered but declined.

21. Mr X felt a further review was not necessary because he had already been the subject of several assessments, so the Council had all the information it required. Instead, Mr X brought his complaint to the Ombudsman. Mr X says he wants the flexible overnight care he requires and not to be liable for the additional “bedroom tax”.

Analysis

22. It is understandable that Mr X wants to continue to live independently with the minimum amount of support required to maintain his dignity. He does not feel the Council’s assessment properly reflects his fluctuating care needs. However, although Mr X is unhappy with the outcome of the assessment, that is not, in itself, evidence of fault on the part of the Council. The role of the Ombudsman is to investigate complaints that injustice has been caused by an administrative fault, not to question a decision which has been taken properly, however much someone may dislike or disagree with it.
23. Mr X’s complaint to the Ombudsman covers three areas:
1. The assessment.
2. The proposed support arrangements.
3. The housing issue.
24. I will consider these matters below.

The assessment

25. The Council was correct to carry out an assessment in September 2020. Mr X had moved home and had requested a service the Council’s previous assessment had not supported.
26. The assessment process was thorough. I have seen evidence of Mr X being fully involved and meaningfully participating. The description of his care needs is consistent with what he told me, which is that they fluctuate. The case notes record some difficulty in getting Mr X to engage with the assessment process, but I am satisfied from reading both these notes and the assessment document that the correct process was followed. For this reason, I do not find fault in the way the assessment was carried out.
27. However, part of Mr X’s complaint is the assessment did not accurately record his health diagnosis. I agree. The assessment was informed by a letter from Mr X’s GP. This stated Mr X had “terminal lung disease”. This was not recorded on his assessment, nor was this mistake acknowledged in the Council’s complaint response when it should have been had the letter from Mr X’s GP been checked. I can only assume this did not happen
28. Mr X considers the terminal nature of his diagnosis to be significant and should not have been ignored. Again, I agree with Mr X. This may have been an administrative oversight but as the Council has failed to rectify this when pointed out by both Mr X and his advocate, I consider this to be fault. I am also satisfied Mr X has suffered an injustice because he was left feeling the assessment was based on a misunderstanding about the seriousness of his lung condition and was frustrated by the Council’s failure to correct the mistake.
29. However, I cannot say this affected the outcome of the assessment because this was based on an assessment of Mr X’s presenting needs, not solely on his medical diagnosis. It is also recorded that Mr X informed the social worker verbally he had a terminal condition, so she was aware of this when making her decision about his needs. The assessment of Mr X’s care needs is sufficiently detailed and accurate to satisfy me there is no further fault with the assessment process.

The proposed support arrangements

30. Mr X says the Council’s proposal of eight hours of support, arranged by Mr X via a direct payment is unworkable. Mr X made enquiries of two care agencies that told him they would need at least 48 hours notice and for him to specify the duration of the care call in advance. Mr X says this just would not work in practice due to the unpredictable nature of his fluctuating needs.
31. In response, the Council said it would face the same problem is it were to arrange the care for him. It suggested a PA maybe a solution.
32. Direct payments can offer people choice and control over their care arrangements. But they should not be the only option and I cannot see the Council has offered Mr X any real alternative. The Guidance is clear that councils should include “comprehensive provision” for fluctuating needs in the support planning process. I accept the unpredictable nature of Mr X’s conditions poses certain challenges. However, the Council should have taken more steps to work with Mr X to identify a solution. It was not enough to provide Mr X with a budget and tell him to make the arrangements himself. This fell short of the requirement of the Guidance and is fault.
33. Mr X was not obliged to agree to a direct payment and at that point the Council should have taken steps to make the arrangements itself. The Guidance makes it clear to councils that direct payments should only be provided where the client wants to arrange their care in this way. I have not seen evidence that an alternative was offered or meaningfully discussed with Mr X. This is a breach of the Guidance and is fault.
34. While I accept the standard notice period required by care agencies may have been problematic, there is no evidence the Council took any action to address this. Again, the Guidance is clear that councils have a duty to try and identify solutions to meet the challenges posed by fluctuating care needs. Again, I am not satisfied that offering Mr X a direct payment that he clearly did not want, or would be meet his fluctuating needs, was sufficient. For this reason, I find the Council to be at fault.
35. Mr X has also questioned the number of hours support offered. The Council has made it clear to Mr X that eight hours would be a starting point and would be subject to review. I am satisfied this was a reasonable approach for the Council to take. The number of hours was a matter of professional judgement for the assessing social worker to decide upon. I am satisfied she reached this decision the correct way and so this is not a matter from the Ombudsman to interfere with.

Housing issue

36. Mr X says he cannot afford his larger property. His housing benefit was reduced because of underoccupancy. This is commonly referred to as the “bedroom tax”. Mr X says he only moved to the two bedroom flat to accommodate an overnight carer that the OT had assessed as being “essential” in January 2019.
37. However, the January 2020 care needs assessment does not say this. While it accurately recorded Mr X’s request to have overnight care, the Council did not agree to meet his assessed eligible care needs in this way. The Council’s alternative offers of support were rejected by Mr X.
38. From the records I have seen, it is unclear whether an extra bedroom was needed at all. Two care agencies told the Council they could provide care if a separate room were available, but this could be a sofa bed in the lounge.
39. However, on the Housing Needs Assessment the OT said an extra room was “essential”. It is entirely reasonable for me to conclude this was the reason Mr X was allocated a two bedroom property by the local district housing authority. And it is also understandable why Mr X thought he was entitled to overnight care, because of the use of the word “essential”.
40. But he was not entitled. The January 2020 assessment was clear about this. Similarly, while the September 2020 assessment confirmed he had eligible care needs, some of which occurred overnight, this did not mean the Council was obliged to meet them in the way Mr X wanted.
41. I must decide if the Council was at fault by arguably giving Mr X “mixed messages” about his entitlement to overnight carers.
42. In reaching my decision I must consider the context of the OT’s statement. The Housing Needs Assessment was completed for a specific purpose, to support his housing application. Mr X made it clear at the January 2020 assessment that he wanted a larger property for overnight care he said he needed.
43. However, this assessment did not say he would be entitled to overnight care. Also, of significant is the fact the Housing Needs Assessment did not state that the overnight carers would be provided by the Council. This could have been arranged privately by Mr X.
44. On balance, I can appreciate why the use of the word “essential”, if read in isolation, could have misled Mr X into thinking the Council would provide the care. However, when read in the wider context, particularly as the Council was clear in its message about overnight care in the January 2020 assessment, I cannot find the Council to be responsible for the additional housing costs incurred by Mr X.

Agreed action

45. I have identified some fault in the Council’s actions in this case. To remedy the injustice caused to Mr X, the Council has agreed to take the following action within four weeks from the date of my final decision:
1. Apologise in writing to Mr X.
2. Pay Mr X £250 to acknowledge the time and trouble involved in making this complaint.
3. Amend his care needs assessment to properly reflect his medical diagnosis.
4. Review his care and support arrangements, taking into account the concerns I have raised in this decision statement and the Guidance on fluctuating care needs. I have been informed by the Council this has already taken place, shortly before my draft decision was sent to both parties.

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Final decision

46. There was some fault in the way the Council carried out an assessment of Mr X’s care and support needs. The Council has agreed to a suitable remedy.

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Investigator's decision on behalf of the Ombudsman