Summary: Mrs X complained on behalf of her brother-in-law, Mr Z, about the way the Council assessed his need for care and support and its decision that he had no eligible needs. She says he has unmet needs. It has also put her and her husband under extra strain and pressure as Mr Z’s main carers. We found no evidence of fault by the Council.

The complaint

1. Mrs X made this complaint on behalf of her brother-in-law, Mr Z, with his written consent.
2. Mrs X complained that the Council did not properly assess Mr Z’s care needs under the Care Act 2014. She says there are factual errors in the needs assessment from May 2021 and it does not accurately report the views of family members and health professionals. She says the Council’s decision that Mr Z does not have eligible needs is based on a flawed assessment.
3. Mrs X would like a new assessment of Mr Z’s needs. She says he has unmet needs and the lack of support puts her and her husband under extra pressure as his carers.

Back to top

The Ombudsman’s role and powers

4. 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 an organisation’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)
5. If we are satisfied with an organisation’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

6. I have spoken to Mrs X and considered the information she provided. I have considered the Council’s comments on her complaint and its records of Mr Z’s assessments, the case notes and records of correspondence with Mrs X and third parties.

7. I gave Mrs X and the council the opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Law, guidance and policies

8. The Care Act 2014 and the Care and Support Statutory Guidance 2014 set out the Council’s duties to adults who require care and support.

Assessment and care plan

9. The Council has a duty to assess adults who appear to have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.
10. The Council aims to commence a needs assessment within 28 days of receiving a referral.

Eligible needs

11. The threshold for eligibility is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Councils must consider whether:
• The adult’s needs arise from a physical or mental impairment or illness;
• As a result of the adult’s needs, the adult is unable to achieve two or more of the specified outcomes;
• As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.

Specified outcomes

12. The outcomes are:
• Managing and maintaining nutrition;
• Maintaining personal hygiene;
• Managing toilet needs;
• Being appropriately clothed;
• Being able to make use of the home safely;
• Maintaining a habitable home environment;
• Developing and maintaining family or other personal relationships;
• Accessing and engaging in work, training, or education;
• Making use of necessary facilities or services in the local community;
• Carrying out caring responsibilities for a child.
13. Administering or supervising medication is a health need not a social care need. In practice, a care worker may supervise a person’s medication if they are making a care call to meet other eligible social care needs. However it is not an eligible need in its own right.

Needs met by a carer

14. In considering the needs of the adult needing care, the local authority must take into account any needs being met by a carer. Provided the carer remains willing and able to continue caring, the local authority is not required to meet those needs. However, the local authority should record the carer’s willingness to provide care, and the extent of this, in the plan of the person and also the carer, so it is able to respond to any changes in circumstances.

What happened

The background

15. Mr Z has had two strokes which left him with some weakness on his left side. He also has epilepsy and a brain tumour. He has a brain injury which affects his ability to retain information and to make decisions. He therefore has physical and mental impairments within the Care Act definition.
16. Mr Z lives alone in a rented bungalow. Mrs X and her husband both work full-time and they are Mr Z’s informal carers.
17. Mr Z was discharged from hospital in mid-October 2020 after fracturing his shoulder when he fell during a seizure. He was wearing a sling when he was discharged home. The Council arranged a short-term reablement care package to support him at home. He received three daily care calls to assist him with:
• Getting in and out of bed;
• Washing and dressing;
• Assistance with meal preparation;
• Assistance with medication.
18. Mr Z’s short term reablement care package stopped on 9 January 2021. The team decided he could manage his needs independently and he did not meet the eligibility criteria for long-term funded social care support. The Council’s case notes record observations about Mr Z’s ability to manage independently but there is no formal record of this review decision.
19. Since 11 January Mr Z has privately funded a 10 minute daily lunchtime call from a home care agency. The care worker heats up his main meal, checks Mr Z has taken his morning medication and puts his evening medication in a pot by his bed. Mrs X says Mr Z cannot afford to pay for additional care calls.
20. Mrs X organises food shopping and deliveries for Mr Z. She used to manage his finances and act as an appointee for welfare benefits. She also helped Mr Z with laundry and some housework tasks.

The request for a needs assessment

21. In late January a staff member from Mr Z’s GP surgery contacted the Out of Hours team. She said Mr Z had missed some medication which increased his risk of a seizure. She felt Mr Z may need more support although he could do a lot for himself. She asked a social worker to contact Mrs X.
22. A duty social worker called Mrs X later that evening. The social worker’s case note said Mr Z appeared to meet the criteria for adult social care because he needed supervision, support and guidance and could not complete many tasks independently. The social worker made a referral to the First Response social work team for Mr Z’s area.
23. Mrs X spoke to two officers in the First Response team in early February 2021 about her request for an assessment. According to the case notes, Mrs X told an officer that Mr Z’s needs had not changed since the last review. However she considered he needed three daily calls to check he had taken his medication and eaten. The officer told her Mr Z did not have eligible needs and therefore did not meet the criteria for funded social care. She based this statement on a telephone review an officer did with Mrs X in December 2020 and the observations made by the short term enablement service during visits to Mr Z in late 2020.
24. Later in February 2021 the Council received a referral from the Learning Disability Service (Mr Z’s GP surgery had referred him for an assessment). It said Mr Z’s needs had increased and he was getting very forgetful. He needed reminders to take medication regularly and to wash and put on clean clothes.
25. This referral was passed to Officer B, a social worker in the local area First Response team. She initially made a referral to a local charity to ask if they could arrange a long term floating support service for Mr Z. However, following further correspondence with Mrs X, who repeated the request for a Care Act needs assessment, Officer B agreed to start one.

The needs assessment

26. Mr Z actively participated in the care assessment and was able to express his views and wishes and explain the outcomes he wanted to achieve. He asked for Mrs X to be present for any complex discussions. Mrs X expressed her views about Mr Z’s care and support needs when she met the social worker and sent evidence about the support she and her husband provided.
27. Mrs X says that due to his brain injury, Mr Z appears to give factual answers to questions but they are not always reliable or accurate. This condition is known as confabulation and means the person presents false information while believing it to be true.
28. Officer B and another social worker met Mr Z twice in May 2021 to complete a mental capacity assessment. They both concluded he had capacity to make decisions about his care and support needs then.
29. Officer B visited Mr Z on 4 March 2021 to start the assessment. Mr X was present. Mr Z agreed to have a bed sensor to monitor seizures and a pendant alarm to summon assistance from the Telecare service when he had a fall. He also agreed that Officer B could make a referral to a local charity for day centres and group activities. Mr Z said he felt he could manage housework but sometimes needed to be prompted to change his clothes. He said he could not manage his finances. He agreed that Officer B could make a referral to the short term support service who would arrange for a support worker to visit to gather more detailed evidence about his care needs. Officer B would then use that evidence to inform her assessment.
30. Officer B made a referral to the Telecare service following the visit. She also contacted the short term support service who told her they had a worker who specialised in working with people with brain injuries but she would not be available until April.
31. Officer B also updated Mrs X about the visit. Mrs X requested a Carer’s Assessment. The Council has a contract with Derbyshire Carer’s Association (DCA) to carry out carers’ assessments on its behalf. Officer B made a referral to DCA on 4 March and the assessment was completed on 14 April. The assessment identified all the support Mrs X provided to Mr Z and whether she was willing to provide it. She said working full-time and caring for Mr Z was having a detrimental impact on her health and wellbeing. DCA sent a copy of the assessment to the Council.
32. Mrs X asked to meet the support worker before she made the first visit to Mr Z. They had a virtual meeting with Officer B in mid-April followed by a face to face meeting at Mr Z’s home on 22 April. Mrs X expressed her views about Mr Z’s needs.
33. The support worker made 13 further visits to Mr Z between 26 April and 20 May 2021. She prepared a written report for Officer B at the end of this period. The first section is a summary of Mr Z’s views, wishes and feelings and his desired outcomes. Mr Z expressed the wish to be as independent as possible and to develop his skills. He said he was capable of showering, washing and doing meals and did not need to be prompted. He said he wanted to do these activities when it suited him and not on a fixed schedule.
34. The rest of the report sets out the support worker’s observations about Mr Z’s ability to manage specific tasks under the following headings:

Managing and maintaining nutrition

The support worker observed Mr Z making hot drinks, using a kettle, and operating a microwave to heat frozen meals. His family ordered frozen main meals which were delivered. He told the support worker he could walk to the local shop to buy any extra food he needed. Mr Z said he chose not to buy much fresh food to avoid waste and he wanted to eat whatever he liked. The support worker said she had concerns about whether Mr Z could safely use a hob and oven to cook while his seizures were not well-controlled.

Maintaining personal hygiene and wearing appropriate clothing

The support worker observed Mr Z safely getting in and out of the wet room shower. She said he may benefit from a grab rail for extra support. Mr Z initially told the support worker he took a daily shower but subsequently said he sometimes washed at the sink instead. He said he did not want to be prompted to take showers and would do it when it suited him.

Mr Z could dress and undress without support. She reported that he generally appeared to be changing his clothes during the observation period and wearing appropriate clothing. He told the support workers he wanted to decide how often to change his clothes. He put on his telecare pendant without prompting.

Maintaining the home environment, dealing with bills and appointments

Mr Z’s home was tidy and the support worker saw Mr Z hoovering carpets during the observation period. There were no unwashed items of crockery or cutlery, he made his bed and the bathroom was clean. He could operate and load the washing machine and hang laundry up to dry. Mr Z said Mr X did his ironing and the support worker said she would have concerns about Mr Z doing it because of his seizures. Mr Z could not manage to change his bedding and the support worker suggested the care agency could do this weekly. Mr Z generally appeared able to manage his home environment.

Mr Z needed support to manage his finances and pay bills and Mrs X had taken on this role. The support worker considered Mr Z could learn these skills. His recall of appointments was inconsistent and he mainly relied on Mr & Mrs X to take him to medical appointments.

Managing his medication

Mr Z’s medication was delivered in a weekly blister pack. He took his morning medication independently. During the lunchtime care call, the care worker put his evening medication in a pot by his bedside. There had been no incidents during the observation period when Mr Z had failed to take his medication correctly. There had been one event the weekend before when he took double the prescribed dose. Mr Z said this was a rare occurrence and he declined the support worker’s suggestion for an automated pill dispenser.

Safety – at home and in the community

Mrs X told the support worker that Mr Z needed to pace himself with tasks as too much activity could trigger a seizure. The support worker noted Mr Z understood why he needed to wear the pendant alarm and he did not need to be prompted to put it on during the observation period. He told the support worker he would sit or lie down if he felt a seizure coming on and she observed him doing this during one visit. Mr Z locked his doors at night and had a key safe for people to get access in an emergency. The support worker made two unannounced evening visits with Mr Z’s agreement to check if he had locked his door. She noted that Mr Z had checked for traffic before crossing the road.

Social integration

Mr Z said he was keen to learn new skills and engage in more social activities. He enjoyed visiting a day centre with the support worker during the observation period.

35. Officer B attended a meeting at Mr Z’s surgery, with the GP and Care Coordinator, on 18 May. Officer B asked if Mr Z had any special nutritional or dietary needs. The GP said nothing had been recorded or advised about his diet. Officer B explained the Council would not provide a service to check Mr Z had taken his medication. According to the case notes, the GP agreed and said the pharmacy was monitoring this and had visited Mr Z following the incident in April. They also discussed the equipment provided to monitor seizures and falls. They agreed that any other specialist equipment would have to be arranged by an epilepsy nurse.
36. Officer B completed the needs assessment on 20 May. She incorporated most of the information in the support worker’s report. She decided Mr Z did not meet the eligibility criteria due to being unable to achieve two or more of the specified outcomes. She identified some types of support that could be provided by other agencies, including to meet his health needs.
37. Mrs X attended a meeting with Mr Z , his brother-in-law and Officer B on 24 May to discuss the assessment report. The meeting lasted for about two hours. Mrs X expressed disagreement with the outcome of the assessment. In her view, Mr Z met the eligibility criteria and should have two daily care calls.
38. Mrs X says there are factual errors in the assessment. She also says Officer B misrepresented or misunderstood Mr Z’s needs and the level of support he needs. She says the assessment did not record that Mr Z has a cognitive impairment resulting from his strokes as well as physical impairments. The report did not accurately report her views. Mrs X also says Mr Z could not follow what was said in the meeting and he could not read the assessment document. He needs to be asked simple questions and could not cope with complex or long meetings.
39. Mrs X says the assessment did not record that Mr Z has to be prompted to manage his personal hygiene and nutrition. She says he needs to be prompted to take a shower, wash his hair, change into clean clothes, and shave. He also needs prompting to eat a healthy balanced diet. Left to his own devices, he will eat unhealthy snacks for his evening meal. Mrs X says his GP had referred him to a dietician due to concerns about his weight and diet. Mrs X buys healthy food for Mr Z but he will only eat it when prompted. She believes these needs should be sufficient to meet the two specified outcomes relating to managing personal care and nutrition.
40. Mrs X says Mr Z manages to keep his home clean but she has concerns about his safety in the home. She has known him to leave lighted candles behind blinds, to overfill the kettle, and says he cannot safely use the hob. He cannot physically manage to change his bed.
41. The Council commented that Mr Z’s views are paramount because he has capacity. It must find ways to promote his independence and respect his right to make choices even if some of his decisions may appear unwise to others. It recognises Mr & Mrs X are protective of Mr Z and may find it difficult to accept some of his choices.
42. Mrs X complained to the Ombudsman in August 2021. We have not investigated action the Council has taken since then.
43. Mrs X decided to stop acting as Mr Z’s appointee for benefits and to reduce some of the support she previously provided to Mr Z. The Council has taken the following action:
• Appointed an independent advocate to support Mr Z and ensure his views and wishes are expressed;
• An appointee from an organisation which provides tailored support to adults has taken over responsibility for managing Mr Z’s finances and bills;
• Mr Z has a special clock for people with dementia or memory loss which is set to remind him to take his medication at the appropriate times;
• Mr & Mrs X had agreed to continue supporting Mr Z with shopping, ironing and changing his bed. Mrs X told me her niece does Mr Z’s ironing. More recently, Mrs X has stopped providing this assistance because of the impact on her own health. The Council had identified an agency which can provide support if Mr & Mrs X decide not to continue;
• A tenancy support worker visits Mr Z every week to orders items online, report the need for any repairs, book health appointments and help him access the community and social activities.
• Agreed to Mrs X’s request for a change of social worker.
44. In response to my enquiries, the Council told me it started a new four week assessment of Mr Z’s needs in late March 2022. It arranged for his existing care agency to make extra daily calls. It will then complete a new assessment, with the involvement of Mr & Mrs X, and decide whether Mr Z meets the eligibility criteria. This new assessment started after Mrs X complained to us so it falls outside the scope of this investigation.

My analysis

45. The Council carried out a mental capacity assessment which found Mr Z had capacity to make decisions about his care and support needs. He wanted Mrs X to support him by attending meetings when complex discussions took place. The evidence I have seen shows Mr Z and Mrs X did not always agree about the extent of his needs, his ability to manage tasks independently and the level of support he required. But as an adult who had capacity to make decisions about his care and support needs, Mr Z’s views took precedence.
46. I shall deal now with Mrs X’s specific criticisms of the May 2021 needs assessment report:
• Mr Z’s cognitive impairment: the needs assessment report noted under the heading “description of cognition” that Mr Z found it difficult to retain information and had undiagnosed memory issues. It recognised Mr Z’s wish for Mrs X to be present during any complex discussions for this reason. For this reason, I do not share Mrs X’s view that the report failed to mention Mr Z’s cognitive impairment.
• Inaccurate representation of Mrs X’s views: the assessment report did report Mrs X’s views. In particular, it set out her view that Mr Z required two daily care calls, needed prompting to shower and change his clothes and eat healthy meals. I have not seen any errors or inaccuracies in the reporting of her views and opinions.
• Prompting Mr Z to shower, change his clothes and eat – the report noted that Mr Z was prompted on some occasions. But it also acknowledged Mr Z’s right to choose when he took showers and how often he changed his clothes. Officer B noted there were no concerns about his skin integrity or continence which required him to take a daily shower. Mr Z also made it clear during the assessment that he did not want someone to prompt him about his personal care. He also wanted to choose what he ate even if Mrs X felt he sometimes made unhealthy choices.
• Mr Z could not understand the assessment and could not cope with a long meeting – Mr Z expressed some frustration about being asked similar questions during the assessment process and his attention waned during lengthy meetings. He had asked Mrs X to be present to support him during the assessments. The support worker told Mr Z when she first met him that she would leave on request if he was tired or overwhelmed by her visits. There is nothing to suggest Mr Z did not understand the purpose of the assessment or that he had capacity to make decisions about his care and support needs and engage in the process.
• Managing the home environment and safety in the home – the report noted the risk to Mr Z if he used the hob while his seizures were poorly controlled. However Mr Z generally used the microwave to heat up ready meals or had a cold evening meal. The support worker observed Mr Z using the kettle safely to make hot drinks. The records I have seen did not mention the risk of Mr Z using candles in the home although Mrs X says she had reported her concerns about this to Officer B.
• Calls to check that Mr Z had taken medication – the assessment report correctly stated this is a health need and not a social care need. It is not one of the outcomes specified in the Care Act and so the Council could not agree to daily care calls to check Mr Z was taking his medication regularly. Despite this, the social worker met Mr Z’s GP during the assessment to discuss the medication issues. She also suggested using an automated pill dispenser to minimise the risk of Mr Z forgetting to take his medication or accidentally overdosing. As Mr Z had capacity, the Council had to respect his wish to manage his medication himself.

47. Having carefully reviewed all the evidence, I have concluded that the assessment completed in May 2021 was not flawed. Mrs X strongly disagrees with the outcome that Mr Z did not meet the eligibility criteria. However we cannot criticise the merits of that decision when we found no fault in the assessment process.

Back to top

Final decision

48. I have completed the investigation and found no evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman