Summary: Mr X, on behalf of Ms Y, complains about the Council’s decision that she was not eligible for care and support from August 2019. There is fault in how the Council made its decision that Ms Y was not eligible for care and support from August 2019. As a result, Ms Y did not receive a care package for 18 months longer than necessary which caused distress and financial loss as she had to purchase some care. The Council has agreed to remedy this injustice.

The complaint

1. Mr X complains on behalf of Ms Y. He complains that the Council’s decision that Ms Y did not have care and support from August 2019 is incorrect as Ms Y considers she had care and support needs at that time.

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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. 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

4. I have:

• Considered the complaint;
• Made enquiries of the Council and considered the information provided;
• Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

5. 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.
6. 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:

• The needs must arise from or be related to a physical or mental impairment or illness.
• 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
10. Carrying out any caring responsibilities the adult has for a child.

7. Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.
8. 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.

What happened

9. Ms Y has a visual impairment and physical and mental health conditions. In 2020 Mr X made a complaint to the Ombudsman on behalf of Ms Y. He complained about the adequacy of a Care Act assessment carried out for Ms Y by the Council. We found fault in how the Council carried out the Care Act assessment and concluded it was inadequate. It did not explore whether Ms Y had needs arising from her physical and mental health conditions, the impact of those conditions on her well being and ability to meet her outcomes. This meant Ms Y could not be satisfied the Council had a complete picture of her needs and this could have compromised a review of her needs carried out by the Council in May 2020.
10. In order to remedy Ms Y’s injustice the Council agreed to carry out a new Care Act assessment. This was to fully consider if Ms Y had needs arising from her physical and mental health conditions which impact on her wellbeing and ability to meet the outcomes. The Council also agreed to consider a remedy for Ms Y if it considered she would have been eligible for care and support from August 2019 when it first assessed her.
11. The Council carried out a new Care Act assessment for Ms Y in February 2021. It found Ms Y had eligible needs and agreed to provide a care package. The Council did not consider Ms Y had eligible care and support needs from 2019 so it would not offer a further remedy.
12. We were not satisfied with the Council’s explanation for why Ms Y did not have eligible needs in 2019. Mr X also complained about the Council’s decision not to offer a further remedy to Ms Y.

The assessments

13. The 2019 Care Act assessment noted Ms Y had poor nutrition, did not wash frequently, her property was cluttered, she could not work due to her mental and physical health and found it challenging to access the local community.
14. The review of Ms Y’s care needs in 2020 noted Ms Y’s needs were primarily mental health related and could be met by the community mental health team. The social worker’s record of her discussion with Ms Y noted Ms Y wanted to have an ADHD coach and that she lacked motivation to attend to her daily living activities. The social worker’s review also noted Ms Y had poor nutrition as she lacked the motivation to prepare her meals, needed encouragement on some days to maintain her personal hygiene, that her home was cluttered and she was at risk of social isolation.
15. The Care Act assessment carried out in 2021 noted Ms Y had a recent diagnosis of autism spectrum disorder, dyspraxia and mental and physical health problems. The assessment also identified Ms Y needed support to maintain her nutrition due to her visual impairment and lack of motivation, support with maintaining her personal hygiene due to a lack of motivation, managing the clutter in her home due to her visual impairment and depression and at risk of isolation. The assessment concluded Ms Y could not meet a number of outcomes which would impact on her wellbeing so she was eligible for care and support.

My assessment

16. On balance, I consider there is fault in how the Council made its decision that Ms Y was not eligible for care and support from August 2019. The Care and Support Regulations provide needs must arise from or be related to physical or mental impairment or illness. There is no evidence to show the Council considered if Ms Y’s mental health conditions caused her to have eligible social care needs. All three assessments note Ms Y’s mental health affected her ability to maintain her nutrition, personal hygiene, safe home and ability to access work. But the 2019 and 2020 assessments failed to consider whether the effect of Ms Y’s mental health on achieving her outcomes and the impact on her wellbeing. It is noticeable that the 2020 assessment did not consider the effect of Ms Y’s physical health including her visual impairment and chronic pain.
17. The 2021 assessment was more holistic and took account of the effect of Ms Y’s mental and physical health conditions on her achieving her outcomes and impact on her wellbeing. I acknowledge Ms Y had recently been diagnosed with autism spectrum disorder and dyspraxia before the 2021 assessment. But the decision that Ms Y was eligible was largely based on the effect of Ms Y’s mental health on her ability to achieve her outcomes and impact on her wellbeing. So, on balance, I consider the Council would have considered Ms Y had eligible needs in 2019 and 2020 if it had properly considered the effect of her mental health on her ability to achieve her outcomes and impact on her wellbeing.
18. As a result of the faults set out above, Ms Y did not have a care package for approximately 18 months longer than necessary. This caused significant distress to her. Ms Y also incurred financial loss as she had to purchase some care which would have been avoided if the Council had properly considered the effects of her mental health on achieving her outcomes and impact on her wellbeing.

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Agreed action

19. That the Council will:
1. send a written apology and makes a payment of £500 to acknowledge the distress caused to her by the delay in assessing her as eligible for care and support which meant she did not have a care package for approximately 18 months longer than necessary.
2. pay Ms Y the sum of £720 to reimburse the cost of the care she had to purchase.
3. By training or other means remind officers that they should consider the impact of a person’s mental health on their ability to meet outcomes and their wellbeing when carrying out a care act assessment and determining their eligibility for care and support.
20. The Council should take the action at a) and b) within one month and the action at c) within two months of my final decision.

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Final decision

21. There is fault in how the Council made its decision that Ms Y was not eligible for care and support from August 2019. As a result, Ms Y did not receive a care package for 18 months longer than necessary and suffered financial loss. The Council has agreed to remedy this injustice in a proportionate and appropriate way so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman