Summary: Ms X complained about the Council’s assessment and the amount of support it provided. She said this affected her independence and caused her to feel like a prisoner. We find the Council was not at fault in the support it provided but it did not fully assess her needs. This caused Ms X uncertainty about the assessment. It has agreed to apologise and complete a fresh assessment with an OT and someone with knowledge of her health conditions.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council did not fully assess her needs and did not provide enough support to meet her needs.
2. Ms X said the Council refused to reassess her after she had a heart attack and did not properly consider the impact of her health conditions. She said this affected her independence and made her feel like a prisoner. She would like a comprehensive assessment, so she is provided with adequate care and support. She would also like the Council to learn from this and ensure it improves its professional performance.

Back to top

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)

Back to top

How I considered this complaint

5. I considered information from the Complainant and from the Council.
6. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

Back to top

What I found

Background

Assessment

7. 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 the person has eligible needs. The assessment must be of the adult’s needs, 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.
8. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.

Eligibility

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:
• Managing and maintaining nutrition;
• Maintaining personal hygiene;
• Managing toilet needs;
• Being appropriately clothed;
• Being able to make use of the adult’s home safely;
• Maintaining a habitable home environment;
• Developing and maintaining family or other personal relationships;
• Accessing and engaging in work, training, education or volunteering;
• Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
• 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 a copy of its decision.

Personal budgets and direct payments

11. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. The care and support plan should consider what the person has and what they want to achieve. It should also consider what they can do by themselves, or with existing support, and what care and support may be available in the local area.
12. The local authority must include a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
13. There are three main ways in which a personal budget can be administered:
• As a managed account held by the local authority with support provided in line with the person’s wishes;
• As a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;
• As a direct payment. (Care and Support Statutory Guidance 2014)
14. Direct payments are payments made to individuals to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority must ensure people have relevant and timely information about direct payments so they can decide whether to ask for them. The Council should support those who ask for direct payments, to use and manage the payment properly. Local authorities must not force people to take a direct payment against their will. They should not place people in a situation where a direct payment is the only way to receive personalised care and support.
15. Local authorities must tell the person during the care planning stage which of their needs direct payments could meet. However, local authorities must consider requests for direct payments made at any time and have clear and swift procedures in place to respond to them.
16. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the local authority must decide whether to provide a direct payment. In all cases, the local authority should consider the request in as timely a manner as possible. The local authority must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should provide the person making the request with written reasons to explain its decision. It should also tell the person how to appeal against the decision through the local complaint procedure. (Care and Support Statutory Guidance 2014)

What happened

17. Ms X has various health conditions which cause her significant difficulties with mobility, pain, and living independently. Ms X had previously received over 30 hours of support a week from another council.
18. Ms X moved to the Council’s area in early 2020 and stayed with her mother, Mrs Z, while waiting for her own social housing property. Ms Z was over 80 years old and had arthritis. Ms X told the Council she could only make the occasional cup of tea due to this.
19. A social worker visited them in early March to assess Ms X’s needs. The Council’s records show Ms X asked for five hours support a day but Ms X says she did not ask for this and said they could negotiate. The Council’s records from the time note that Ms X agreed she would not need as much support while she lived with her mother. The Council agreed to a care package of 10 hours 20 minutes per week and told Ms X she would need to make a private arrangement for housework and dog walking. The Council assessed Ms X as able to pay the full cost of her care. Ms X asked the Council to allow for the cost of a dog walker and some disability related equipment. The Council advised Ms X it would consider this if she supplied receipts.
20. Due to COVID-19, the care workers were unable to take Ms X out for two hours twice a week as planned. The care worker offered to stay and chat with Ms X but Mrs Z objected to this. The social worker spoke with Ms X who told her the care workers did not have enough time. The records note the social worker asked about this but the call ended suddenly. A few days after the care package started, Ms X told the Council she did not want care workers again until she was in her own property. She also cancelled the care package with the Care Provider.
21. The Council’s records note regular and often difficult calls with Ms X, at times including Mrs Z. On several occasions the social worker offered to reinstate Ms X’s care package, but she declined for various reasons. On one occasion in June, she declined because she said the care package did not offer enough support. She said she had managed without any support for several weeks “with great difficulty”. Some of these calls discussed the social time Ms X was supposed to receive. The Council advised Ms X that care agencies were not providing social support currently due to COVID-19.
22. The social worker tried to speed up Ms X’s housing application due to concerns about stress to both Ms X and Mrs Z due to Ms X’s extended stay and a volatile relationship. Ms X did not want to move outside a small area and suitable housing opportunities were limited. Ms X disagrees with this and says she said she would look at them. The Council records note that Ms X asked about moving to a care home which the Council advised was not suitable. Ms X says this is not correct. When the Council offered Ms X a short respite stay in a care home, she did not want this. In July, Ms X accepted a property.
23. At the end of July, Ms X agreed to the care package resuming. Ms X complained to the Council that the care workers had not turned up as expected. The Care Provider said the care worker had tried to alert Ms X for 20 minutes but got no response. The social worker arranged for care workers to call Ms X on her mobile if they could not get a response and Ms X planned to install a key safe once she moved.
24. In August, Ms X had still not been able to view the property because it needed work which had not yet begun. The housing provider agreed to arrange for the work to begin and for Ms X to view the property.
25. The Care Provider reported care workers were mostly doing ironing and cleaning; Ms X says this is wrong. Some care workers did not want to visit again, and the arrangement was at risk of breaking down. Ms X asked for specific timed visits in the morning, including one at 6:30am which she then cancelled because the Care Provider could not do it. Care visits are usually provided within a set time band, for example, 7am to 10am. Precisely timed calls are usually only available for those who require time specific support. The Care Provider said it could not commit to precisely timed calls especially for domestic support at critical times. The care workers advised that Ms X needed support with washing and dressing most mornings. However, they had only supported her with one shower since restarting and three half hour visits a week were planned for this. The Council discussed this with Ms X and advised her care workers would make her bed and clear away pots on the days she could not manage to do this. Around two weeks after the care package restarted, Ms X cancelled it again after care workers refused to do housework which was not on the care plan.
26. At the end of August, the Council changed Ms X’s social worker. The Council’s records note that Ms X told the social worker she wanted 35 hours a week for social activities, housework, and shopping. Ms X disputes this and says she said 12 hours was not enough and insulting. The records also show Ms X said she wanted a direct payment. The social worker told Ms X she would assess her needs the following week and go from there. The social worker contacted Ms X’s GP about her health conditions; they advised that her main health condition was currently around 6 on a scale of 1-10. Ms X’s adult son and daughter were present for the assessment. Ms X said she could manage her own personal care slowly and had no continence needs. She did not need support with medication. The social worker said she would complete another assessment with an occupational therapist (OT) when Ms X moved to her new property at the end of September.
27. Towards the end of September, the social worker reviewed Ms X’s needs as Ms X told her she was struggling with her personal care in the mornings. Ms X said she also had to crawl around as she was now unable to walk. The social worker questioned this as Ms X had previously in the conversation mentioned doing something which would be difficult if she could not walk. Ms X said she needed support with personal care and with moving now planned for early October. This review did not refer to the information provided by the GP in August. The social worker could not visit Ms X because of COVID-19 but advised she could arrange a care agency to visit for about 30-45 minutes each morning. Ms X was unhappy with this. The social worker agreed to a 1 hour visit each morning between 7am and 9:30am. Ms X was also unhappy with this but accepted it. The social worker suggested Ms X contact a removals company who would help with packing and unpacking. She also suggested her son and daughter help her with moving.
28. Four days later, Ms X cancelled her care because the care workers were far too late for her. The social worker advised Ms X there were no agencies who could provide the support any earlier.
29. The social worker told Ms X she would arrange an interim care package consisting of just under 13 hours per week with three visits daily. This would support her when she moved into her property until the social worker could complete a fresh assessment. Ms X said this would not be enough. Ms X told the social worker she wanted a direct payment.
30. Ms X’s property was eventually ready for occupation at the end of October. However, before she had moved in, Ms X had a heart attack. The social worker telephoned the hospital to advise that Ms X would need an assessment before returning home. The hospital advised that Ms X was mobilising independently with a walking frame. A few days later, Ms X was discharged to Mrs Z’s home for a short stay before moving to her own home. The Council started a package of care the following day, as agreed with Ms X, to be reviewed when she moved to her own home. On the second day, Ms X told the Council the care workers had not turned up that morning and she wanted to cancel the care package. The Care Provider told the Council they had arrived but got no answer. It said the night before Ms X was unhappy with the care worker because she arrived later than she expected. Ms X had threatened not to let her in when she arrived in the morning. The Council agreed to cancel the care package and arranged for an assessment and to consider direct payments. Another social worker was allocated to carry out the assessment.
31. The following week the social worker telephoned to review Ms X’s care needs. Ms X had now moved into her home. She told the social worker she was struggling but did not want a care agency as she could not cope with care workers turning up at different times. She confirmed she could use a walking frame at times but found it difficult to manoeuvre through the doorways. This review did not refer to the information the social worker had received from the GP in August. The social worker agreed to visit Ms X to assess her needs once the lockdown period ended. Ms X asked for free care to be reinstated as she could not afford to pay for any care. The social worker discussed this and explained Ms X would have to pay her assessed contribution. The social worker reminded Ms X of the care package she had cancelled. Ms X said she did not need it and Mrs Z was helping her. The social worker became unclear whether Ms X was living in her new home or still staying with Mrs Z due to the conflicting information given. She reminded Ms X that she did not expect Mrs Z to be helping her. The social worker asked Ms X if she wanted her to start the direct payment process as Ms X had not yet identified a PA. Ms X said no. Later the same day, Ms X telephoned the finance department and asked to restart the care package which was to be free of charge. The social worker called Ms X who was upset about having no support and wanted the care package to start again.
32. The social worker arranged a care package by the reablement service as part of an assessment. The service began in mid November and provided four visits daily totalling 14 hours 30 minutes weekly. The social worker advised Ms X it would be free of charge for up to six weeks. Ms X was not happy that the visits would have time bandings, not precise timings, but accepted it.
33. In mid December, the social worker reviewed Ms X’s care package with an OT. The review noted Ms X’s heart attack and her fluctuating needs. Ms X declined toileting equipment or a commode. She agreed to raising the sofa and to be referred for a powered wheelchair so she could go out alone. The social worker requested a slimmer walking frame so Ms X could move through her home more easily. Ms X agreed to shop online and the care workers would put away any heavy items. The social worker also said that care workers would help putting laundry in the machine, taking it out, and hanging it. Ms X also understood that social time was still not possible until COVID-19 restrictions were lifted. The social worker planned to visit in the first week of December to reassess with an OT if the COVID-19 lockdown restrictions were lifted. Ms X agreed to the direct payments process to begin and understood it could take several weeks to set up.
34. The reablement service reported that Ms X cancelled 37 of 124 visits and refused all personal care. She asked care workers to complete domestic tasks during these times.
35. When Ms X complained to the Council it investigated and found two occasions where care workers had run late from their previous call. One was 13 minutes outside the time band and the other over one hour outside. The Council apologised for this. In relation to the time spent by the care workers, the Council advised Ms X that visit times vary according to the support she needed. If Ms X did not need the support on the care plan, the care workers would not use the time to provide something else not on the care plan. Ms X feels strongly that the Council has not met her needs at all and this is why she complained.

Was there fault which caused injustice?

36. The Council assessed and reviewed Ms X in difficult times, by phone. This was understandable and did not cause Ms X injustice. I do not consider it failed to meet her needs as she cancelled the support it offered and managed without it. She did not claim eligible needs that the Council had not identified. While councils should be flexible and consider a person’s preferences about what support is helpful, they do not have to support a person with needs which are not eligible. The Court of Appeal decided:
• A council’s duty under section 9 of the Care Act 2014 is not to achieve the person’s desired outcomes but to assess whether the provision of care and support would contribute to those outcomes.
• The wishes of the person may be a primary factor but they are not an overriding consideration.

(R (Davey v Oxfordshire CC)

37. The Council was at fault for not formally considering the information it obtained from the GP within the reviews it carried out. However, I consider this probably caused little injustice as Ms X gave the Council good reason to question whether she needed the support it provided. As far as the Council understood, from the often contradictory and confusing information it received, Ms X often coped without any support. She usually cancelled it within a few days, refused care workers entry to her home, and declined the support included on her care plan. However, the Council could have considered why Ms X found the time bandings so difficult. It should have consulted with someone trained about Ms X’s condition, to explore this and consider the likely impact and progression of the condition. This caused Ms X some uncertainty about whether her needs had been properly assessed. Ms X has a specialist nurse assigned and the Council should consider whether it is appropriate for them to be invited to the next assessment. The Council should also have involved an OT sooner however, Ms X accepted limited support from the OT, so this caused little injustice.
38. It was unfortunate that the COVID-19 restrictions affected Ms X’s opportunities for social activities; everyone was affected by this. While it caused Ms X significant distress, this was not the Council’s fault.

Back to top

Agreed action

39. To remedy the injustice identified above, I recommended the Council:
• Apologise to Ms X in writing for the faults identified above.
• Undertake a fresh ‘in person’ assessment by a qualified social worker not previously involved, an OT, and someone who has specialist knowledge of Ms X’s significant health condition(s).
40. It has agreed to do this and should complete these actions and submit evidence to me within six weeks of my final decision. Suitable evidence would include a copy of the letter and a copy of the completed assessment.

Back to top

Final decision

41. I have completed my investigation and uphold Ms X’s complaint that the Council did not fully assess her needs. I do not uphold her complaint that it did not provide enough support to meet her needs.

Back to top

Investigator's decision on behalf of the Ombudsman