Summary: Mr X complained about the way the Council dealt with his request for a care needs assessment and took over two years to provide support. He says this caused him much stress and anxiety and affected his mental health. We find the Council was at fault and caused Mr X an increased risk of harm, undue stress and anxiety, time and trouble. We recommended it apologise, reimburse him for the care he paid for, with an amount equivalent to his direct payment, and £600 for the injustice it caused. We also recommended it take action to improve its practice in future. The Council agreed to these recommendations.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained that the Council did not adequately assess his needs and did not fully respond to his complaint about that.
2. Mr X says this affected his mental health and he struggled to cope. Mr X is also unclear why it took support from a professional advocate to achieve an assessment.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (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 considered information from both Mr X and the Council.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should happen

Assessment

7. Sections 9 and 10 of the Care Act 2014 (the 2014 Act) 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.
8. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment. They must also consider how to prevent needs developing or escalating at every interaction with a person.
9. The Care and Support Statutory Guidance to the 2014 Act says comprehensive assessments must be completed by appropriately trained assessors. Assessors must undergo “regular, up-to-date training on an ongoing basis”, appropriate to the assessment and the condition of the person being assessed. Where an assessor does not have the skills, they must consult someone with relevant experience.
10. Assessments should provide a holistic view of the person’s needs and “must be person-centred”, and “consider the person’s own strengths”.

Care plan

11. The 2014 Act 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 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. 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.

Autism

12. The National Autistic Society says: “Autism is a lifelong developmental disability which affects how people communicate and interact”. Also, “Autism is not a mental health problem but autistic people can have good and bad mental health like anyone else.”. (online at autism.org.uk)
13. Mencap says “Autism is not a learning disability, but around half of autistic people may also have a learning disability.”. (online at mencap.org.uk)

The Autism Act 2009

14. The Autism Act 2009 (the Act) came into being following a campaign due to a lack of diagnosis services for adults and because many services were for people who also had a learning disability or a mental health condition. People with autism and no learning disability of mental health condition fell between the gaps. The Act says there must be a Government strategy for improving services for adults with autism underpinned by legally binding guidance to councils. In 2015, the Government updated the adult autism strategy statutory guidance, following the introduction of the Care Act 2014. The guidance said:
• “In line with the 2010 statutory guidance, local authorities should be providing general autism awareness to all frontline staff in contact with adults with autism, so that staff are able to identify potential signs of autism and understand how to make reasonable adjustments in their behaviour and communication. In addition to this, local authorities are expected to have made good progress on developing and providing specialist training for those in roles that have a direct impact on and make decisions about the lives of adults with autism, including those conducting needs assessments. This expectation remains central to this updated statutory guidance.”.
• “…local authorities and NHS bodies should develop commissioning plans for services for adults with autism and review them annually. Local authorities should also allocate responsibility to a named joint commissioner/senior manager to lead commissioning of care and support services for adults with autism.”.
• “In addition, local commissioning plans should set out how local authorities will ensure that adults with autism are able to access direct payments (where appropriate) and benefit from the personalisation of health and social care. Local partners should already have a local autism partnership board in place which brings together different organisations, services and stakeholders and adults with autism and their families to set a clear direction for improved services. Autism partnership boards have proved to be a highly effective means for stakeholders to shape and monitor local delivery of the strategy and statutory guidance. It is therefore essential for their partnership arrangements to be established in areas where they are not currently.”.
• “Historically, people with autism may have approached services, but where they do not have a co-occurring learning disability or mental health problem, they are sent between teams and end up falling in between services.”.

Council complaint procedure

15. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

16. The Council’s policy says it aims to acknowledge complaints within 3 working days and to respond to “most” complaints within 20 working days.

What happened

17. Mr X has high functioning autism and a gastrointestinal condition. Prior to receiving his diagnosis of autism, he became unwell and around January 2020, he privately arranged a care agency to support him.
18. In February 2020, Mr X telephoned the Council advising that he was paying for care privately and was on a long waiting list for a hospital appointment. He said he wanted the Council to assess him under the Care Act. The Council passed this to the locality team for a face to face assessment. However, the following day, the locality team redirected the referral to the mental health service. Records note this was because Mr X was pending a mental health assessment. The Council closed the case.
19. In October 2020, Mr X’s care agency referred him to the Council advising the Council about the support it provided. It noted that Mr X may need support around his nutritional choices. At this time, the Council said Mr X was open to the mental health team (MHT), so it passed the referral on.
20. In January 2021, Mr X contacted the Council wanting to know when he would have a social care needs assessment. Mr X appeared to be still open to the mental health team however, when the Council passed on his enquiry, the MHT advised he was not open to any of their teams.
21. In May 2021, the Council received a referral from Mr X’s GP asking for a needs assessment. It said Mr X needed support with planning meals and prompts to exercise a few times a week. The Council replied to the GP asking them to refer Mr X to the MHT as his primary needs arose from mental health (referrals to the MHT are only accepted from GPs).
22. Just over three weeks later, Mr X’s MP referred him to the Council with concerns about his self harm and threats of suicide. The Council referred Mr X to the MHT. Following contact from the MHT, the council contacted Mr X to discuss his request for support with meals, taking medication and general housing related matters. After much discussion internally and with the mental health service , the Council referred Mr X to the Network. The Network is an enablement service run by the Council and the local mental health trust. Mr X regularly contacted the Council to find out what was happening. He made a subject access request for the information that the Council held about him, to try and understand why he had not had a care needs assessment.
23. In August, a social worker from the Network offered Mr X a Care Act needs assessment.
24. In September, the social worker from the Network completed a Care Act assessment of Mr X’s needs. In its response to my enquiries, the Council acknowledged that it did not appropriately communicate the outcome of this assessment to Mr X. It also did not complete a financial assessment. This meant Mr X continued to pay for his privately arranged support and did not know whether the Council should have been funding some of this. The assessment found he needed dietary support and housing related support; these needs were met by Mr X’s privately arranged care. The Council has agreed to apologise for this and offer a remedy for the distress it caused.
25. In late January 2022, Mr X advised the Network that he had received confirmation of an Autism diagnosis and requested an occupational therapy assessment. Mr X’s key worker left the team, and Mr X was allocated a community engagement worker (CEW).
26. Around one week later, the CEW and Mr X’s previous key worker spoke with Mr X by phone. He told them that his key worker had helped him be motivated and not feel depressed, now he felt unsupported. He also advised that he found it difficult with household tasks and did not often have proper meals. He was now waiting for an assessment for ADHD. He reported risky behaviours due to his frustration and said he could not afford the privately arranged care any longer as he no longer worked. He also asked for support with social engagement. They agreed to a new Care Act assessment. A few days later, they met in person to discuss the issues further.
27. Mr X continued to chase for an assessment and complained to us in early March. However, the Council had not had the opportunity to consider his complaint so we asked the Council to do this and advised Mr X that he could come back to us if he was unhappy with the final response.
28. In mid March 2022, the Council’s records note that the Network had agreed to allocate a keyworker. At the end of April, the Council received a referral from an advocacy organisation, requesting a Care Act assessment for Mr X. Council records also note contact with Mr X who stated that he needed a Care Act assessment.
29. In April 2022, the Council’s records note that Mr X was “entitled to request” a Care Act assessment but it had a “sizable waiting list of 16 weeks currently”.
30. In early May 2022, Mr X visited the Council office and complained about how long he had waited for a Care Act assessment. He also asked about his complaint and said he had been expecting a response by 14 April. He was introduced to his new student social worker and advised that a senior social worker would be overseeing his case. They agreed to telephone him the following week to arrange an assessment date. In that call, they arranged the assessment for mid May. The Council’s records noted that, if Mr X was offered an appointment, he may be satisfied that the concerns in his complaint had been addressed.
31. Mr X was supported by an advocate and his private care worker during the assessment which lasted around two hours. Two days later, the Council asked Mr X to “pop in” to see someone for five minutes. The Council arranged a second assessment meeting in late May. Mencap emailed the Council asking why Mr X had been asked to pop back and see someone and concerned that this would cause him additional anxiety. They said they appreciated why someone might want to gather more information or clarify something, but they were unclear why this couldn’t be done by email. They said “surely [Mr X] could be emailed the queries/questions”, so he could process the questions and respond at his own pace. The Council responded the next day and advised that a senior social worker wanted to ask Mr X some questions face to face to clarify some points. Mencap asked what would be discussed in the second assessment meeting and the Council gave them a list of all the areas to be covered in an adult assessment. Mencap expressed concerns about Mr X not being assessed by a more experienced assessor considering his autism and wrote to the Council to explain how autism affected Mr X’s day to day functioning. It said when it offered to do this, the Council advised that it could, but it would delay Mr X’s assessment. It therefore sent the letter
32. At the second assessment meeting, Mr X was again supported by his carer and advocate and a manager from his care provider. Also an advocate from Mencap. Council records note that the senior social worker said she felt it would be “beneficial” for Mr X to try enablement before a care package. Mr X was not happy about this. The senior social worker mentioned referring Mr X to the IAPT (Improving Access to Psychological Therapies) programme. Mr X became extremely agitated and said they wouldn’t take him; he had already done all this.
33. Mencap wrote to the Council following the meeting to address that Mr X had been “misled as to the purpose of the meeting”. It explained why Mr X had reacted with agitation and set out how the Council had misled both Mr X and those supporting him.
34. Mr X asked us to continue with his complaint.
35. Following the meeting, Mr X received a copy of his assessment and met with his advocate to discuss the care plan and proposed care hours.
36. The Council later responded to Mencap and acknowledged that it could have done more to prepare Mr X for what would be discussed. It suggested that Mr X’s response had prevented the social worker outlining the plan for a package of homecare as well as enablement. However, the Council records do not suggest this was the plan and the enablement was instead of a care package.
37. In mid June, Mr X, his care worker and advocate, met with the Council to go through the proposed care plan. Mr X was unhappy with the plan for some support to be provided by the Council rather than by his existing care provider. They agreed the Council would fund 18 additional hours of support from the private care provider and Mr X would continue to self fund 10 hours. This was a total of 28 hours per week. The Council completed the financial assessment in August.
38. In August, following a difficult situation which significantly increased Mr X’s anxiety, he asked for more support. The Council advised that current waiting times for review was around four months due to “a high rate of referrals”. It said it had to “allocate on the basis of urgency and risk”.
39. The Council has confirmed that it offers staff autism awareness training run by Mencap and basic autism awareness eLearning training. However, neither of the staff involved in Mr X’s case had completed this training. The Council says it is following this up directly with all staff within the affected service area. It also says that following Mr X’s complaint, the head of learning disability, head of safeguarding and principal social worker planned to meet in October to plan sessions with all staff to share the learning from this case.

Findings

40. Mr X, his care provider, his GP, his MP, and advocate, each referred him for a care needs assessment. The Council’s repeated assumption that the request for a social care assessment should be passed to the MHT caused a significant delay in Mr X receiving the support he needed. As did the breakdown in the process following his September 2021 assessment. It took over 18 months for the Council to assess Mr X’s social care needs and then it did not complete the process. It was well over two years from his first request for an assessment, before Mr X completed the process and had the support he needed. This was fault and caused Mr X significant and undue stress and anxiety, time and trouble. It also increased the risk of harm to him due to his already high levels of anxiety due to his autism. If it had not been for Mr X’s persistence, and the support of others, he would probably have gone without the support he needed for longer. Fortunately, for some of the time, Mr X was able to pay for care and support. However, this caused him a financial injustice, as the Council should, on the balance of probability, have paid towards this.
41. Since ASD is a lifelong condition, we can say, on the balance of probability, that Mr X’s care and support needs identified in May 2022 were similar to those he reported in February 2020 when he first asked for an assessment. During that time, Mr X paid for care privately. The Council has offered to backdate Mr X’s direct payment to September 2021 but this would mean the money going into Mr Y’s direct payment account. He would then be restricted in how he could spend the money. He has already received care, so it should reimburse Mr X a sum equivalent to that of his June 2022 direct payment from February 2020 to May 2022. Mr X has supplied invoices and a care plan to evidence his expenditure which I will forward to the Council with my draft decision.
42. Four months was the Council’s stated waiting time for both assessment and review. I do not consider this “a suitable and reasonable timescale” (see paragraph 7). People should not be waiting such a long time to be assessed. I saw no consideration of risk to Mr X due to the considerable delay caused to him. This was fault.
43. It was not until the final response to his complaint, that the Council acknowledged much of its failure and its responsibility towards Mr X. Its failure to recognise its fault when Mr X complained, meant the problems continued without resolution for too long. This was fault and this added to the undue stress and anxiety Mr X experienced.
44. As with all local authorities, the Council is struggling with various challenges including significant budget pressures. In our report “Under pressure – the impact of the changing environment on local government complaints” (available on our website), the Ombudsman says:
• “While we understand the challenges councils are experiencing, and realise that change and restructure can explain some service failures, it cannot excuse them. We cannot make concessions for failures attributed to budget pressures; we must continue to judge authorities in line with relevant legislation, standards, guidance and their own policies.”.
45. In response to my draft decision, the Council told me that:
• a review of its processes around including care and support plans as part of the assessment process, is already underway.
• work to improve the connection with the mental health social work teams has been completed since this complaint was raised.
• work on providing further autism training for all staff in the coming year has begun and it is identifying experts in each service area to receive specialist autism training. It is also promoting the autism awareness training which is already available to staff.
• A review of its complaint handling is in progress. Managers receive weekly updates on current and outstanding complaints to ensure oversight and adherence to policy and timescales.

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Agreed action

46. To remedy the injustice identified above, I recommended the Council:
• Apologise in writing to Mr X, setting out the actions it will take to avoid similar problems in future for Mr X and others;
• Pay Mr X the equivalent of his direct payment from 1 March 2020 to May 2022 to remedy the financial injustice caused by its delay. This amounts to £47,558.57, and is in addition to the amount of £925.71 for the period between 1 June 2022 and 16 June 2022. This is a total of £48,484.28;
• Pay Mr X £600 to recognise the risk of harm, undue stress, anxiety, time and trouble it caused in the way it dealt with his request for an assessment and the delay in doing this;
• Review its processes to ensure preparing care and support plans for people with eligible care needs is an integral part of the assessment process. It should make sure all front-line staff are aware that assessments must be carried out in line with the statutory guidance;
• Provide details of its process for prioritising assessments and reviews, and details of actions taken to reduce waiting times. The Council has already provided this information in response to my draft decision. It advises that it has reduced the waiting times and has achieved 80% of assessments within 28 days;
• Put in place an ongoing programme of training in autism so that all assessors and their managers, have regularly updated specialist training. All staff should receive autism awareness training within the general equality and diversity training programme; and
• Review its complaint handling to ensure complaints are responded to in line with the Council’s policy.
47. The Council has agreed to these actions and should provide us with evidence it has complied with the above actions within three months of this final decision.

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Final decision

48. I have completed my investigation and uphold Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman