Summary: Miss X complained about the outcome of a reassessment of her care and support needs. On the evidence seen so far, we have found the Council to be at fault because it did not properly consider her need for care at night, did not involve her properly in the assessment and fettered its discretion. She suffered avoidable distress, uncertainty and possible risk of harm. To remedy this injustice, the Council has agreed to apologise, make a payment to her, carry out a reassessment and take action to improve its practices.

The complaint

1. Miss X complains about the Council’s failure to properly assess her care needs. In particular, she complains about:
1. the failure to adjust her direct payments to reflect an increase in need since 2019. This led to an overspend in her direct payment account that she cannot afford to pay; and
2. the removal of support for night-time care needed to turn and reposition her.
2. This has left Miss X unable to pay for care she needs to maintain good health and well-being. It has also caused her significant distress.

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What I have and have not investigated

3. I have not investigated 1(a) above. This is because the Council has refunded Miss X’s direct payment account since she brought her complaint to us. Any further investigation by the Ombudsman would not lead to a different outcome.
4. I will not investigate the outcome of the Council’s care assessments before the review in 2021. This is because this aspect of the complaint is late (see paragraph six below) and I can see no reason why Miss X could not have complained to us sooner.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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

8. I spoke with Miss X and reviewed the information she provided.
9. I made enquiries with the Council and reviewed the relevant law.
10. Miss 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

Relevant law and guidance

11. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment. It should say whether and to what extent the needs meet the eligibility criteria, specify the needs the council is going to meet and outline how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
12. The relevant statutory states care plans should be reviewed at least annually, and that;

• reviews should identify if the adult's needs have changed and a reassessment is needed;
• when reviewing the care plan, councils should follow safeguarding principles to ensure the person is not at risk of abuse or neglect; and
• periodic reviews must not be used to arbitrarily reduce a care and support package. (Care and Support Statutory Guidance, Section 13)

13. The law says, 'Where the local authority is proposing to change how it meets the person's needs, it must take all reasonable steps to reach agreement with the adult concerned about how it should meet those needs.' (Care Act 2014, Section 27)

Direct payments

14. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.

NHS-funded care

15. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS, where a person has been assessed as having a ‘primary health need’.

What happened

16. I have set out below a summary of significant events and is not intended to describe everything that happened.
17. Miss X is disabled and requires support with daily living. For several years she has arranged this support via a direct payment. Miss X says she benefits from the flexibility to employ her own personal assistants. Miss X used some of her direct payment to pay a personal assistant to stay overnight five days a week to reposition her in bed. Miss X cannot do this herself and is at high risk of developing pressure sores. This need for overnight support was agreed and funded by the Council following an assessment in June 2019 (“the 2019 Assessment”).
18. A care assessment review was completed by a social worker (Officer J) in December 2021 (“the 2021 Assessment”). This was prompted by Miss X’s personal assistant requiring emergency leave in January 2022.
19. The assessment document recorded Officer J’s doubt as to whether Miss X needed night time care and that she would seek advice from her manager. This led to the Council proposing to remove night support from Miss X’s support package. But before a final decision was made, doing Officer J:

• discussed the case with the occupational therapist (OT). She explained Miss X had a pressure turning mattress;
• discussed the case with the district nurse. He told Officer J that Miss X was a high risk patient and the mattress used by her reduces the risk of sores developing. He also advised a tilt table is sometimes used for frail elderly clients, but an assessment would be required to assess suitability;
• discussed care arrangements with the care agency that had been providing temporary daytime support for Miss X; and
• contacted Miss X’s GP who said Miss X had not received any treatment for pressure sores.

20. A senior officer reviewed the available information and decided Mrs X’s assessed needs could be met by four daily care calls, plus two weekly domestic, shopping and laundry calls. This was a significant reduction in hourly care support to what the Council agreed in 2019, although the direct payment budget available to Miss X remained the same. The Council said it was up to Miss X how she chose to allocate these funds to best meet her care needs.
21. Although Miss X’s overall budget did not alter significantly, any further night-time care would have been unaffordable due to Miss X’s accrued debt on her account and problems she had experienced employing her own staff and staff costs.
22. Funding for her night time support ended on 20 January 2022.
23. Miss X immediately complained this decision. The Council agreed to seek further guidance from the relevant health professionals.
24. The tissue viability nurse (TVN) advised was that Miss X needed a night time carer to turn her. This opinion was reiterated by both the district nurse and Miss X’s GP.
25. In response, the Council decided Miss X’s need for care at night arose from a health rather than a social care need. A case note reads, “The Council cannot offer 24-hour support in a clients’ home - if the client requires 24 hour support a placement would need to be considered”.
26. The Council then arranged for a CHC assessment to be carried out. This concluded Miss X did not meet the criteria for health funding.
27. Miss X complained to both the Council and then the Ombudsman.
28. In response to our enquiries, the Council explained that Miss X has a Hybrid air-flow mattress which reduces the risk of pressure sores or skin breakdown which was introduced to remove the need for assistance through the night. The Council had assessed Miss X’s needs and determined they could be met through the Hybrid air-flow mattress.

Analysis

29. It is not the Ombudsman’s role to decide if a person has social care needs, or if they are entitled to receive services from the council. The Ombudsman’s role is to establish if the council assessed a person’s needs properly and acted in accordance with the law.
30. If, as a result of a reassessment, a support package is reduced, or changed in a significant way, then the law requires that the Council provides a detailed and convincing explanation as to why, for example, because the person’s condition has improved substantially. In this case, there appears to have been no reduction in Miss X’s needs between 2019 and 2021.
31. Having reviewed the available evidence, I am not persuaded the Council did so in this case and acted with fault.

Failure to properly consider night-time support during the 2021 Assessment

32. Miss X is clear, and her view is supported by medical evidence I have seen, that her good skin integrity was maintained because of her being turned at night. It is entirely understandable why Miss X was so distressed when the Council said she no longer had this need.
33. For such a significant change, with potential for harm, we would expect a person-centred assessment about care at night to be carried out before support was withdrawn. This was particularly important as need for care at night was specifically identified in the 2019 Assessment. This stated, “Miss X is at high risk of developing pressure sores and could benefit from an increase in her care package to have care four to five nights per week to reduce this”. To support this need, the Council funded eleven hours of sleep-in care, as well as nine hours of other support.
34. I found the 2021 Assessment did not include any specific consideration of Miss X’s overnight care needs. This, I suggest, was because the assessment was not prompted by a change in need, rather an issue around direct payments. In my view Miss X’s management of her direct payment account was the main focus of the Council’s enquiries.
35. The only reference to overnight care in this assessment was Officer J’s note stating that it was not clear what Miss X actual needs were and further enquiries from health colleagues was necessary. This was fault.
36. From the evidence I have seen, the decision to withdraw night time support was mainly based on care rotas provided by Miss X.
37. She says they did not include all relevant information and were provided for the purpose of resolving the direct payment problem. They did not include details of the care she received during the night. This was a significant omission. Even when the Miss X told the Council about this in early February 2022, there is no record of the Council reviewing this information or explaining why it was irrelevant (if this was the case). This was fault.
38. I have reviewed the advice received from health colleagues in January 2022. I am not persuaded this was sufficient to justify the Council’s decision. This is fault. Officer J was told by the district nurse that Miss X was at high risk of developing pressure sores. He also advised the Council specialist equipment could be used to turn Miss X. Although this had already been trialled by Miss X (and proved unsuccessful) this was not by the Council at that time. The option of additional equipment should have been explored before removing support.
39. Information given by the GP was also limited in use. While she confirmed Miss X has not received treatment for pressure sores, this in itself should not have led the Council to conclude her need for support in this area was not there.
40. When further enquires were later made of Miss X’s GP practice, another GP qualified their colleague’s earlier comment by pointing out the reason Miss X had not needed such treatment for pressure sores was because she was being regularly turned at night. They also explained her health was being put at risk by not having a carer. This view was echoed by the TVN and district nurse.
41. I also agree with the point made by Miss X that advice from the TVN should have been obtained in the first instance, and not because of her complaint.
42. In its response to the Ombudsman’s enquiries, the Council has relied on Miss X’s needs being met by the pressure relieving mattress. Yet this conclusion is not supported by the advice given by the relevant health professionals.
43. I do not criticise the Council for making enquiries as to whether health funding may be available. But when it was not, this did not necessarily remove any duty the Council may have. The Council had agreed there was a need for night care and I would have expected a further discussion with Miss X about how this need could be met. This did not happen and is evidence of further fault.

Failure to involve Miss X in the support planning process

44. The case records show the Council did not discuss its intention to remove support for Miss X’s overnight care until shortly before it did so. The precise date is not clear from the case records, but it would appear to be a day or so beforehand. It was therefore an unexpected shock to Miss X when she was told.
45. This did not give Miss X an opportunity to make representations as to why this should not happen.
46. This leads me to conclude that Miss X was not involved in any meaningful discussion, as to why her care should be reduced. This is fault and not in line with the Care Act 2014, which says the client should be actively involved in the care review. Miss X rightfully felt that she was not sufficiently listened to in January 2022 or given a fair opportunity to discuss the possible impact any proposed changes may have on her.

The Council fettered its discretion

47. Having reviewed the Council’s case records that include discussions between Officer J and her manager, the Council appears to have focused on costs not Miss X’s wellbeing.
48. The Statutory Guidance states, “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties… The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles”.
49. In this case, the Council appears to have initially taken the view that Miss X’s needs could not be met because they occurred at night, and this was not a service the Council provided because it was too expensive.
50. This is evidenced by the comment made in the case notes that “the Council cannot fund 24 hour care in a person’s home”. It went on to say such care could only be provided in a residential setting.
51. The Council seems to have viewed Miss X’s need to be turned at night to the equivalent of a 24 hour care package. It said the hours offered were enough for her to be able to manage. This demonstrates the Council’s focus was on budgets and not Mrs X’s needs or wellbeing.
52. This approach effectively capped the available budget for home care to that of a residential placement. Blanket policies of this nature are unlawful. It amounts to a fettering of the Council’s duty to meet an assessed need. Councils cannot simply take the cost of a residential care home as the benchmark figure for other care packages. In this case, such an approach would leave Miss X with little option of accepting residential care, or a reduced care package.

Injustice

53. I have identified several areas of fault in how the Council carried out the 2021 Assessment and decision to withdraw support for care at night. This has caused Miss X significant distress, particularly as she has been unable to pay for someone to turn her at night. This injustice was significant and so requires a remedy. She also spent avoidable time and trouble making her complaint.
54. As I have said, it is not my role to determine whether the Council should have funded additional support hours. The decision may have been the same even if the Council had acted without fault. However, there is uncertainty about whether the outcome would have been different if it had. This uncertainty is further injustice and is reflected in my remedy below.

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Agreed action

55. Where we find fault that has caused injustice, we aim to put the person back in the place they would have been but for the fault. Our Guidance on Remedies suggests that where a person cannot be put back in the place they would have been but for the fault identified in the investigation, we will recommend the Council makes symbolic payments in recognition of the distress and uncertainty caused and the avoidable time and inconvenience to the complainant.
56. The Council has agreed to take the following action within four weeks from the date of my final decision,
1. Apologise to Miss X for the faults I have identified and the distress and uncertainty this has caused her.
2. Pay Miss X £500 to acknowledge her distress and uncertainty.
3. Pay Miss X £250 to acknowledge her time and trouble spent pursuing her complaint.
4. Arrange a comprehensive assessment of Miss X’s needs, taking into consideration information provided by health professions and Miss X. Pending the outcome of this review it should reinstate funding support for Miss X’s night time care needs.
57. Within two months from the date of my final decision, the Council should provide evidence to the Ombudsman to demonstrate that it has;
1. reminded staff of the importance of continuing to ensure the adult's care needs are being met when their care plan is under review, particularly if they are without adequate care during a period of dispute;
2. reminded staff of the needs to involve service users when it proposes to make significant adjustments to their care support;
3. reminded staff of the Council's duty to clearly set out how a person's eligible care needs will be met, particularly where it proposes to reduce someone's care hours; and
4. taken action to ensure staff do not fetter their discretion when making support planning decisions.

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Final decision

58. I have found the Council to be at fault the Council has agreed to remedy the injustice caused. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman