Summary: Mr X complained the Council delayed completing a reassessment of his daughter Miss Y’s care needs, has not provided enough hours of support and has refused to backdate the reassessment. The Council was at fault for the delay in completing the assessment. This caused Mr X some frustration but did not cause a significant injustice to Miss Y. The Council was also at fault for not carrying out a carer’s assessment of Mr and Mrs X. It has agreed to do so now and to apologise to Mr X for the frustration and uncertainty this caused. There is no evidence of fault in the way the Council assessed Miss Y’s care needs or in its decision not to backdate the personal budget.

The complaint

1. Mr X complains the Council delayed completing a reassessment of his daughter Miss Y’s care needs, has not provided enough hours of support and has refused to backdate the reassessment. As a result, Mr X says Miss Y is not receiving all the care she needs and she has no contingency hours which is placing the family under significant strain.

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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. 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)
4. 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)

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How I considered this complaint

5. I have considered the information provided by Mr X and discussed the complaint with him on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

7. A council must carry out an assessment of any adult who seems to need care and support. 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 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. The care and support plan should consider what the person has, 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.
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) 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.
10. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. The Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
11. 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)

Carer’s assessment

12. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
13. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

What happened

14. Miss Y is a young adult with physical disabilities and a learning disability. She lives with her parents Mr and Mrs X and four siblings. She is a wheelchair user. Miss Y attended a college course until March 2020, when she stopped going because of the COVID-19 pandemic. She formally finished college that summer. At that time Miss Y was attending college 2.5 days a week and attended a community support service two days a week (5.5 hours each day). She also received 32 hours per week of support to assist with toileting, personal care and meeting her nutritional needs.
15. In June 2020 a social worker contacted Mr X to review Miss Y’s care needs. Mr X says he did not know this was a review and did not receive a copy of any review paperwork. The social worker noted Miss Y was not attending college due to the pandemic. She was not able to go out and was relying on family support and support from a care agency. The review noted no changes were required at that time and that Mr X was considering approaching the college for Miss Y to repeat the year.
16. In May 2021 Mr X contacted the Council. The notes record he said Miss Y had finished college and would benefit from day care once a week, ideally on a Friday.
17. An officer carried out a review with Mr X and Miss Y in June 2021. They noted Mr X said Miss Y’s needs had changed since the last review. Miss Y was no longer attending college and required extra support to enable her to remain supported and safe. Mr X said Miss Y had restarted the community support service and was attending four days a week and received support from two care agencies in the morning and early evening. He sought support on Fridays when Miss Y did not attend the service. Mr X also sought support for care workers to take Miss Y swimming. The officer noted an assessment was needed due to the change in circumstances with Miss Y no longer attending college.
18. In July 2021 a social worker made some initial enquiries and started to complete a needs assessment. There is no evidence this assessment was completed or shared with Mr X. In September 2021 the Council reallocated the case to another social worker.
19. In September 2021 a social worker arranged to carry out a home visit. Miss Y, Mr and Mrs X and a care worker were present. The social worker also contacted the care providers to ascertain what support they were providing. At the visit they established Miss Y was receiving more support than was previously provided. Mr X confirmed he was using the direct payments budget to pay for the care. Miss Y was attending 6 hours a day for four days a week at the community support service. She also received support from two care providers for more hours than she had previously been assessed as needing. The care worker confirmed Miss Y required more support at mealtimes. They noted Miss Y needed the support of one person for toileting to assist with transfers. Mr X said Miss Y was not left alone due to her continence needs, her risk of falls if she transferred independently and her inability to escape in an emergency.
20. The social worker requested copies of medical letters from Mr X so they could explore securing some health funding to support Miss Y due to her physical health needs. They carried out a further visit in October 2021 and agreed to look into whether Miss Y could access work experience at a school on a Friday. The social worker completed the needs assessment in November 2021 and shared it with Mr X.
21. In the assessment they noted Miss Y attended the community support service four days a week and wanted this to continue. She also wanted to look at work experience on Fridays. Mr and Mrs X said they wanted Miss Y supported during the days and would support her in the evenings. Mr X requested support with swimming and attending the gym. The social worker considered this was a health need so agreed to submit a request for health funding. Miss Y required support with personal care and toileting, with maintaining nutrition and with accessing the community.
22. The social worker noted Miss Y was currently receiving 70.5 hours a week of support which was not formally assessed or commissioned by the Council. In response to the question, ‘is a carer assessment required’ they ticked ‘yes’. In response to the question ‘has a carer assessment been offered’, they ticked ‘yes’. They noted ‘carers assessments regularly completed and respite vouchers provided. Family state there are respite vouchers still available to be utilised’. The Council has confirmed it has not completed a carer’s assessment for Mr or Mrs X since September 2019.
23. The Council assessed Miss Y as requiring 58.75 hours per week of support. This consisted of visits each morning, teatime and bedtime with additional lunchtime support Friday to Sunday, four days per week at the community support service plus travel and six hours per week to be used flexibly for recreational activities. They also assessed a need for an additional 2.5 hours per week to be used flexibly for times when Mr X was away with work. They agreed to seek health funding for an additional four hours per week to support with swimming/physical exercise. They noted Miss Y had a mobile phone she could use to contact her parents and the family had refused telecare. They noted the longest Miss Y felt safe being alone was around one hour.
24. Mr X was unhappy with the assessment. He was concerned Miss Y was not receiving support throughout the day on a Friday. Mr X considered Miss Y needed 71.5 hours of care a week but was receiving 58.75 hours. Mr X also considered the support plan should be backdated, at least to July 2021, which was six to eight weeks after they requested support. He said Miss Y had previously attended youth groups on a Sunday which she was too old to attend now and she needed support at home on Saturdays.
25. The social worker responded and advised they were still exploring the possibility of voluntary work and had requested funding from health. The statutory obligation to provide community and recreational activities was covered by the community support service Miss Y attended. The activities Miss Y previously attended at weekends were community groups which were not funded by adult social care. They explained adult social care did not replace education and they had fulfilled the obligation for recreational and social support. Mr X remained unhappy. He said the Council had not checked what the family needed. He considered Miss Y required more hours.
26. The social worker responded and said Miss Y did not need a sitting service. She only required constant supervision in the community and had not been assessed as needing constant 1:1 in the home environment. Her support needs could be met within the allocated hours. Mr X disagreed. He said Miss Y needed support to use the toilet and to evacuate in case of an emergency. He said there were not enough hours for Friday to Sunday and the family could not support due to other commitments.
27. In late November the school advised work experience for Miss Y was not presently possible due to the pandemic. The social worker updated Mr X and offered to refer Miss Y to the integrated neighbourhood team to explore community opportunities.
28. Mr X complained to the Council about the following:
• the lack of support at the weekend and Fridays;
• a reduction of support on an evening from two to one hours;
• the Council wrongly assumed the family would provide informal support beyond the 58.75 hours identified;
• the hours had not been backdated to when they first requested a reassessment; and
• not being able to use the direct payments flexibly.
29. The Council responded to Mr X’s complaint in December 2021. It said:
• no formal weekend support was withdrawn. Miss Y had previously accessed community groups on a weekend. It said six hours of support remained in place for Miss Y to access the community.
• past assessments showed Miss Y had previously received one hour of support each evening and it found no evidence she had previously required two hours of support.
• social care did not replace formal education and it had met Miss Y’s needs for community activities.
• family support was always considered in all social care assessments and if the family were unable to provide support the position would need further consideration.
• the hours would not be backdated as Miss Y’s needs had been met using contingency and unused funds.
• direct payments were based on the equivalent cost of the Council purchasing the service. If someone chose to use a more expensive provider they would be expected to pay any ‘top up’.
30. Mr X remained unhappy and complained to us.
31. In January 2022 health agreed to fund part of the care package. The Council increased the care package by four hours and backdated this to November 2021. The Council also clawed back around £5,000 which was unspent from the direct payments budget. Mr X remained unhappy and the Council offered to instruct an independent social worker to assess Miss Y’s needs to ‘afford checks and balances to the work so far’.
32. Mr X considered they were still four hours short of what was required with no contingency. The social worker and an officer from the finance team met with Mr X who explained one of the care providers had delayed billing. Following the meeting the Council agreed to refund the £5,000 clawed back to enable the delayed bills to be paid. They noted that Miss Y had accrued a significant balance during the COVID-19 pandemic which Mr X had used to meet Miss Y’s needs. The Council would not backdate the funding as Miss Y’s needs were met using the accrued funds. Mr X continued to request additional hours to support Miss Y on a Friday which the Council did not agree to.

Findings

33. When the Council reviewed Miss Y’s care needs in June 2020 it failed to share the review documentation with Mr X or Miss Y. This was fault. Mr X was not aware this was a formal review. However, the notes indicate at that point, and given the pandemic, Miss Y did not require any additional support.
34. When Mr X contacted the Council in May 2021 to request additional support it delayed carrying out a reassessment of Miss Y’s care needs. We would normally expect an assessment to be completed in around six weeks. In this case the reassessment was not completed until November 2021. This delay was fault. However, due to the COVID-19 pandemic Miss Y has accrued a significant amount of funds in her direct payment budget and Mr X was able to use these to ensure her care needs were met. Therefore, this delay did not cause Miss Y a significant injustice but did cause Mr X some frustration.
35. The Ombudsman is not an appeal body. It is not for the Ombudsman to say what level of care is appropriate to meet Miss Y’s needs. We can only look at how the Council made its decisions and whether there was fault in the process it used to make those decisions.
36. The Ombudsman’s role is not to decide how Miss Y’s eligible needs should be met. That is a decision for the Council to take. The Council assessed Miss Y’s needs in line with the Care Act and statutory guidance. It involved Miss Y, Mr and Mrs X and the care providers in the assessment process. People can express a wish for a particular service and the Council must have regard to this; however, it is for the Council to decide how best to meet a person’s eligible needs. The Council proposed a support package to meet Miss Y’s needs and explained the reasons for its decision. There was no fault in the Council’s actions.
37. Mr X says there is no contingency available, however the Council included 2.5 hours a week in the budget to provide for this.
38. Mr X is unhappy the Council has not backdated the personal budget to when he first requested a reassessment of Miss Y’s needs. Due to the COVID-19 pandemic, Miss Y accrued significant funds in her direct payment account. Where funds are not spent, normally councils would seek to recoup this funding. In this case Mr X was able to use the money to fund a care package which was in excess of the package assessed by the Council to meet Miss Y’s needs at that time. There was no fault in the way the Council made its decision to not backdate Miss Y’s personal budget.
39. Mr X has continued to raise concerns about the care package. In particular, he considers Miss Y cannot be left alone and needs 1:1 support. The Council assessed Miss Y needs full support in the community but does not consider that she requires 1:1 support when she is at home. These are matters of professional judgement and as there is no evidence of fault in the assessment process, I cannot question them. In addition, the Council has agreed to instruct an independent social worker to carry out an independent Care Act assessment of Miss Y’s needs to help resolve the differing viewpoints.
40. The social worker noted Mr and Mrs X required carer’s assessments. The Council has confirmed no carer’s assessments were completed. This is fault. Although Mr and Mrs X had respite vouchers available, a carer’s assessment is not purely for commissioning respite. This leaves a sense of uncertainty over whether Mr and Mrs X have missed out on additional assistance to support them in their role as carers.

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Agreed action

41. Within one month of the final decision the Council has agreed to:
1. apologise to Mr X for the frustration caused by the delay in assessing Miss Y’s needs and for the uncertainty caused by the Council not completing a carers’ assessment.
2. complete carer’s assessments for both Mr and Mrs X. If any additional assistance is provided as a result of this, this should be backdated to September 2021, when the Council noted they required an assessment.

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Final decision

42. I have completed my investigation. There was fault by the Council which caused injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman