Summary: Ms X complains the Council prevented her from accessing social care and support. We have not found the Council at fault for failing to help Ms X engage with the process. We have found faults in how the Council ensured suitable advocacy was in place, some of which caused Ms X an injustice. We have not found the Council actively sought to restrict Ms X’s access to social care services.

The complaint

1. Ms X complains the Council has prevented her from accessing social care and support, despite recognising she has support needs. Ms X says the Council:
1. has not made any effort to help her engage with the process;
2. has dismissed her requests for specific types of support and has not been clear about what support she can access;
3. has made referrals to services that are not relevant to her needs;
4. has actively sought, with other involved agencies, to restrict her access to social care services; and
5. has discussed her case with other agencies without her knowledge or consent.
2. Ms X says this has caused isolation and distress. She is seeking access to social care services.

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What I have investigated

3. I have investigated those parts of Ms X’s complaint about how the Council has facilitated her access to social care (parts A-D). The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. 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)
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered information provided by Ms X and discussed the complaint with her.
7. I considered information the Council provided in response to my enquiries.
8. Ms X and the Council had an opportunity to comment on a draft version of this decision. I considered any comments received before making a final decision.

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Relevant legislation, guidance and policies

Assessment

9. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person 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.
10. An adult with possible care and support needs or a carer may choose to refuse an assessment. In these circumstances, councils do not have to carry out an assessment. Where a council identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult’s best interests, it must do so.

Care and support planning

11. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has. It should consider what they want to achieve, what they can do by themselves, or with existing support, and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Advocacy

12. The Care and Support Statutory Guidance (the Guidance) sets out the role of advocates in the assessment and support planning process. It says at the point of first contact, local authorities must seek to ascertain whether an individual is able to be involved in their assessment and local authorities must therefore consider whether the individual has substantial difficulty in doing so.
13. If a person does have substantial difficulty, the local authority must find someone appropriate and independent to support and represent the person, for the purpose of facilitating their involvement. This should be done as early as possible in the assessment process so that the individual’s involvement can be supported throughout all stages of the process.

Personal budget

14. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money assigned 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 enough to meet the person’s care and support needs.

Relationships with other services

15. Sections 21 to 23 of the Act set out the limitations on the circumstances in which local authorities may meet care and support needs. In particular, these sections say local authorities must not meet needs by providing or arranging any health service or facility that the NHS should provide, or that should be provided under the Housing Act 1996.

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What I found

Background

16. Ms X previously complained to the Ombudsman that the Council had failed to meet her care needs. In January 2021, an Ombudsman investigation found the Council had failed to explain to Ms X that her assessed charge needed updating. This had caused unnecessary distress and contributed to Ms X’s reluctance to accept the support on offer. The Council agreed to issue an apology, waive any assessed charge for 12 months, and take action to assess Ms X’s needs under the Care Act, having last done so in 2017.
17. The information I received in response to my enquiries shows that Ms X and the Council exchanged a large amount of correspondence following this decision. In December 2021, Ms X referred her complaint to the Ombudsman, for the reasons set out in paragraph 1.
18. I have reviewed copies of correspondence exchanged from January 2021 to March 2022, as well as other supporting information relevant to this matter.

Complaint the Council has not helped Ms X engage with the process

19. Ms X says the Council has not made any effort to support her engagement with assessment, and care and support planning. This in turn has prevented her from accessing social care and support.
20. I have viewed logs of correspondence exchanged between Ms X and the Council, considering the exchanges that led Ms X to refer her complaint to the Ombudsman. Having done so, I do not believe the evidence available supports this part of Ms X’s complaint.
21. The volume of correspondence exchanged between Ms X and the Council has been significant. It would be impractical to produce a full chronology as part of this statement. I have, however, identified key exchanges which I believe demonstrate the Council’s wider efforts to engage with Ms X and move the process forward.
22. The correspondence between parties shows relations between the Council and Ms X are often contentious. Throughout, Ms X highlights several historical examples of alleged poor conduct by the Council. In its responses to Ms X’s complaint, the Council accepts some of the key points made by Ms X. It refers to apologies it provided at the time, as well as actions it took to put things right. These historical allegations are outside the scope of this investigation, but it is clear these past events have reduced Ms X’s trust in the Council’s intentions towards her.
23. However, I have not found anything to suggest the Council acted with any fault towards Ms X in this case. The evidence suggests the Council sought to make progress with the care and support planning process. It reiterated that Ms X was entitled to access social care and support. I have not identified any fault with the Council’s actions in this respect.
24. Individuals can choose not to have an assessment. Ms X is entitled to withdraw her consent and disengage from the process. If Ms X opts to do so, the Council is not required to carry out an assessment.
25. The Guidance does though make clear that where an individual has refused a needs assessment, but later requests one, the Council must carry this out.

Advocacy

26. Throughout the process detailed above, Ms X said she had been denied an effective advocate. She said any advocates assigned to her worked on terms set by the Council, rather than acting in her best interests.
27. In its stage two complaint response, the Council said Ms X had never been denied an advocate. It said an advocate had been assigned in January 2021 to help Ms X with her disability assessment and adult care assessment. The Council said Ms X had asked that this advocate no longer support her, and the support therefore ended in April 2021. The Council said advocacy remained available at any time, but Ms X needed to consent to receiving support from the advocate.
28. The records I have viewed show:
1. Ms X had an independent advocate assigned in January 2021. The advocate told the Council from the outset that Ms X did not trust their intentions and they had sought to reassure her. In April 2021, Ms X asked that the advocate be removed. She said they were not independent and did not want to help her. The advocate told the Council Ms X had made it clear she did not want the advocate to continue in their role.
2. Ms X referred herself to the area advocacy hub in April 2021 and a new advocate was assigned. Ms X worked with this advocate until approximately August 2021, before this arrangement ended. There are conflicting accounts about why this advocacy ended. Ms X says the advocate did not want to help her and wrongly closed her case; the advocacy organisation says Ms X did not consent to the advocate discussing the matter with her social worker. This meant there was nothing further they could do.
3. Ms X complained to the advocacy organisation about the quality of advocacy given to her. Ms X asked the Council if she could use her personal budget to employ an advocate, which the Council said would be possible.
4. Ms X’s complaint was not upheld at both stages of the advocacy service’s complaints process. In December 2021, Ms X asked the Council for help arranging an advocate. She also complained about the advocacy organisation. The Council enquired whether Ms X would like to work with the same advocacy organisation, or whether she would like an independent advocate to be arranged. Ms X said she would accept either approach, if the advocate was prepared to work with her.
5. In early January 2022, the Council asked Ms X what issues she needed advocacy for. Ms X said she wanted advocacy for access to mental health services, help with complaints, and social care arrangements. The Council asked for Ms X’s permission to contact the advocacy organisation to clarify the allegation it would not work with Ms X. It said if the organisation could not advocate for Ms X, it could arrange an independent advocate. Ms X said she had made clear she wanted an advocate.
6. Ms X’s social worker left the team and a new social worker was allocated. In February 2022, the Council sent a referral for advocacy in assessment and support planning. In March 2022, it sent a referral for advocacy in making complaints about accessing health and social care services.
29. As outlined in paragraphs 12 and 13, the Council has a duty to establish if an individual needs an advocate. If so, it must find someone appropriate and independent to support that individual.
30. An independent advocate was in place early on. This relationship broke down and the advocate stopped supporting Ms X in April 2021. Ms X says the advocate would only work to terms set by the Council. I have seen no evidence the advocate was directed by the Council and have not therefore identified fault in the Council’s actions on this point.
31. The Council received notice in early April 2021 that Ms X would no longer have an advocate. As far as I can ascertain, it took no steps to arrange a new independent advocate for Ms X. This is fault. I cannot, however, say this caused Ms X an injustice, as she referred herself for advocacy at the time and so was not without an independent advocate.
32. In December 2021, Ms X asked the Council to help her arrange new advocacy, following her complaint about the second advocate. The Council clarified what type of advocacy Ms X needed in early January 2022, but, due to a change in allocated social worker, did not fully complete the referrals until March 2022. It therefore took approximately two months to complete the referrals for new advocacy. Ms X was also asked repeat questions about the advocacy she was seeking.
33. I consider the delay in completing the referrals, and the duplicated requests for information, to be fault. I cannot say Ms X would have felt able to engage with any advocate assigned, but consider these faults caused Ms X avoidable frustration and inconvenience.
34. Ms X has brought to my attention further concerns she has with the assessment and advocacy processes since this time. I have not investigated these newer matters, as they occurred outside of Ms X's original complaint to the Ombudsman. Ms X is not precluded from making a new complaint about these concerns.

Complaint the Council has dismissed requests for specific types of support

35. Ms X has frequently asked the Council whether she can access mental health services, such as counselling, as part of her care and support plan. She has highlighted the recurrent difficulties she has experienced in getting health services she finds satisfactory. The Council has advised services like counselling cannot be included in a package of care and support provided by the Council. It has said Ms X would need to contact her GP for a referral to these types of services.
36. As outlined in paragraph 15, the Act sets limitations on when local authorities may meet care and support needs. In particular, the Act says councils cannot provide services or facilities that are the duty of the NHS to provide. This means the Council cannot provide or prescribe medical treatment. I have not therefore identified fault with the Council’s position on this.
37. Ms X frequently sought details about the care and support she might be able to access if she engaged with the process. The Council briefly alluded to care and support provision in its early exchanges with Ms X. However, it was only in October 2021 that the Council provided some tangible examples of what support might be available. Ms X has suggested the Council caused frustration by not being clear at an earlier opportunity.
38. However, specific care and support provision is based on an assessment of an individual’s needs. The assessment process did not conclude until Ms X returned her signed assessment at the end of September 2021. Following this, the Council made suggestions about the care and support provision.
39. Given the extended time needed to complete the assessment process, I have not found fault in the time taken by the Council to provide specific examples of care and support.

Complaint the Council made referrals to services that are not relevant to Ms X’s needs

40. The Council referred Ms X to a housing support service (Service A). The Council also referred Ms X to a social prescribing service (Service B). Service B seeks to provide individuals with access to local groups and organisations, matching their needs and interests.
41. Service A considered the referral and said there were no identified housing needs it could help with. It said hoarding issues would need to be addressed through adult social care and Ms X’s housing association.
42. The Council wrote to Ms X in December 2021, explaining the outcome of the referral to Service A. It said that adult social care could arrange support with Ms X’s housing needs, if this was something she wanted.
43. Ms X queried what Service A was and why the Council had referred her to it if it could not help her. She said the Council should have known it would have been unable to help her before making a referral. She said her housing association did not offer support and had referred her to adult social care.
44. The Council explained to Ms X that the services assessed each referral and they were sometimes rejected for varying reasons. I do not consider the Council should have known Ms X’s referral would be rejected before making it and have not therefore identified fault with the Council making the referral.
45. Service A later contacted the Council in January 2022. It said it had asked for more information about Ms X’s housing issues when it received the referral. It was unclear whether this request had been passed onto the Council because of staff shortages. It said hoarding issues should be referred to Ms X’s housing association’s tenancy sustainment service and provided the contact details for this. The Council made Ms X aware of this information a few days later, offering to engage with this service if Ms X would find it helpful. The Council says Ms X did not provide clear consent for the Council to act on this and so it took no further action.
46. I have not found any fault with the Council referring Ms X to Services A or B. Ms X has told me she still has difficulties with housing support, which the Council has previously indicated it would be willing to assist with.

Complaint the Council, with other involved agencies, has sought to restrict Ms X’s access to social care services

47. Ms X says the Council was part of a multidisciplinary team (MDT) meeting about her care, along with the local and neighbouring health authorities, in late 2019. Ms X says she only became aware of this because the minutes of the meeting were provided to her as part of a previous investigation by the Ombudsman.
48. Ms X says the agencies at the meeting coordinated to restrict her from accessing health and social care services. She says this included making false allegations about her conduct, suggesting she posed a danger to staff, and making false allegations of fraudulent activity.
49. Ms X made a complaint about this meeting to the Council in May 2021, highlighting specific statements made about her. In its response, the Council addressed the specific claims made by Ms X:
1. It said Ms X’s GP, rather than the Council, had made the referral for a recent, separate Active Case Management (ACM) meeting. Ms X would need to discuss the reasons for the referral with her GP.
2. It said the neighbouring health authority discharged Ms X from its services because she was an out-of-area client, not because of any undue pressure from the Council.
3. It said Ms X was entitled to services from the Council, as it had stated in responses to complaints in April 2021. It said there was an assessment process underway to clarify what Ms X’s needs were. It said comments made by the health services about treatments ending in 2018 referred to that period only and did not preclude Ms X from seeking new services in future.
4. It said the minutes did not state Ms X had made threats of violence towards staff, as Ms X claimed. The complaint response quoted the relevant sections to evidence its point.
5. It confirmed there were no active warning flags on Ms X’s record, as Ms X suggested. It said Ms X had raised a complaint about this and received a full written response in 2018.
6. In response to Ms X’s claim she had been called a “danger to children”, the Council accepted it had inaccurately documented this on its records in 2010. It highlighted an apology it had issued about this in 2011 and said it had invited Ms X to view the Council’s corrected records in person. The Council recognised this caused Ms X distress at the time and continued to affect her relationship with officers.
7. In response to Ms X’s claim the minutes falsely accused her of fraud, the Council identified the relevant sections and explained the comments highlighted by Ms X were not about the same issue. It said the minutes did not accuse her of falsely claiming carer’s allowance.
8. Ms X said the Council had accused her of lying about historical abuse perpetrated against her. The Council said it had addressed this in 2015, providing an explanation and an apology for the way information had been recorded. It said there was no evidence to suggest the Council had accused Ms X of lying about her experiences.
9. Ms X referenced a historic claim she had been violent in a meeting with a social worker. The Council accepted this and said it related to a complaint Ms X made in 2014. It said it had responded in 2015, apologising for the way Ms X’s conduct in the meeting had been recorded in letters at the time. It accepted Ms X had not been abusive or aggressive in the meeting in question.
10. The Council said an indicative budget had been provided, but until a support plan had been agreed with Ms X, a personal budget could not be finalised. The Council said when Ms X agreed the plan, she would receive confirmation of the personal budget and there would be no means test or contributions for 12 months.
11. Ms X said the minutes showed the Council refusing to accept her under social care. The Council advised it had addressed this point in 2019. It said:

“At the meeting it was understood that CMHT was having difficulty engaging you to complete your support plan and options of how to do this were being explored. One of which was to ask if your case could be transferred back to Adult Care to complete the support plan. It was this suggestion that was being refused as your case was open to CMHT and required mental health input which is not an adult care specialism.

The brevity of the minutes did not expand on the context of those discussions with this being a professionals meeting. Please be reassured that it was not you personally who was being refused but we can understand how this has caused you upset and for that we are sorry.”

12. The Council said Ms X’s GP would be able to provide minutes for the ACM meeting and restated how the budget process worked. It said it had regularly investigated Ms X’s complaints. It apologised that Ms X had cause to complain about the service in the past, but hoped she would be able to accept the help and support officers wanted to provide.
12. I have not found the Council restricted Ms X’s access to health and social care, as Ms X has asserted. Professionals from the relevant health bodies led the discussions, and made decisions around where and how to deliver relevant medical treatment. I have not found any pressure from the Council for the health professionals to arrive at a particular outcome.
13. Some of the historical matters Ms X complained about are not recorded in the minutes. It is not therefore clear that these matters were discussed in the meeting. The Council responded to these concerns in any event and referenced previous apologies and explanations it had provided. This is appropriate and what I would expect the Council to do.
14. The minutes broadly corroborate the explanations the Council provides in its complaint response. I have not found any fault as a result.

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Agreed action

53. Within four weeks of the final decision statement, the Council has agreed to:
1. provide a written apology to Ms X for the frustration and uncertainty resulting from the faults identified in this statement;
2. remind relevant officers it is the Council’s duty to appoint a suitable advocate for those in need of one; and
3. pending Ms X’s willingness to engage with the process, ensure an appropriate and independent advocate is appointed as soon as possible.

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Final decision

54. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy that injustice.

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Parts of the complaint that I did not investigate

55. I did not investigate the part of Ms X’s complaint that the Council discussed her case with other agencies without her knowledge or consent. This is because Ms X’s complaint alleges this was a conscious choice by multiple professional bodies, including the Council. The Information Commissioner’s Office (ICO) is better placed to consider a complaint about alleged breaches in personal data.

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Investigator's decision on behalf of the Ombudsman