Shropshire Council (22 002 147)
Category : Adult care services > Assessment and care plan
Decision : Upheld
Decision date : 26 Mar 2023
The Ombudsman's final decision:
Summary: Miss X complained about the way the Council assessed and met her needs and enabled her to access its systems. She says this caused her significant stress and anxiety. We find the Council was at fault in the way it assessed and met some of her needs. It offered to reimburse Miss X £1600 for some equipment she had paid for herself and to arrange for a financial officer to visit and help with her financial assessment. We recommended it also ensures staff are adequately trained in autism and that Miss X is supported to access its systems as far as possible. It agreed to do this. We also recommended it complete a fresh assessment of her needs with a specialist autism trained social worker and its sensory visual impairment team. The Council also agreed to this.
The complaint
- Miss X complained that the Council failed to complete adequate assessments of her needs and to ensure those needs were met. Its forms are not accessible to her.
- Miss X would like an effective and accurate assessment of her needs by a qualified person and someone who understands about her sight loss and autism. She says she needs more care time to socialise with other blind and autistic people and would like to go to college and become more independent.
- Miss X would also like a financial assessment in person as she cannot access the Council’s form. She would like the Council to reimburse her some money for the equipment she had to arrange herself and for extra care time and a holiday as promised. She built up funds in her direct payment account but the Council said she couldn’t use it for equipment.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered information from both Miss X and the Council.
- Miss X and the Council had an opportunity to comment on my draft decision and my revised draft decision. I considered their comments before making a final decision.
What I found
Background
Assessment
- 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.
- 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.
- 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.
- Assessments should provide a holistic view of the person’s needs and “must be person-centred”, and “consider the person’s own strengths”. If both parties agree, Councils may combine an assessment with that of a carer where “intrinsically linked”, to avoid completing two separate assessments. Assessments should be collaborative.
Care plan
- 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
- 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)
- 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
- 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.”.
Equality Act
- The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
- The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
- The ‘protected characteristics’ referred to in the Act include disability.
Reasonable adjustments for people with disabilities
- The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
- Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
- The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people with a range of impairments might reasonably need.
Public sector equality duty
- The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
- eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
- advance equality of opportunity between people who share a protected characteristic and those who do not; and
- foster good relations between people who share a protected characteristic and those who do not.
- The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
What happened
- Miss X is blind and has autism. This causes Miss X many difficulties including those most relevant to this complaint, significant anxiety, accessing documents and other information, and getting around.
- In June 2021, Miss X, supported by her advocate, had a visit from her social worker about her direct payment and review. In this meeting, Miss X advised that she was waiting for opportunities to open up after the lockdown so she could explore activities in the community. She also said she wanted to go out for a meal or go to the cinema. Her advocate suggested a voluntary advocate for this. Later that month, Miss X’s social worker reassessed her needs and recommended a further 10 hours a week because of a change in her needs. Miss X was also supported by her advocate during the assessment. Neither Miss X nor her advocate raised any concerns about the assessment at the time. The assessment again referred to Miss X’s wish to do activities in the community including attending college and groups for people with autism and sight loss. However, it noted Miss X as saying she would not currently be able to take them up due to lack of time. Miss X does not agree with this and says the social worker refused to consider this. The assessment did also note Miss X’s wish to visit family some significant distance away but did not consider how this might be achieved. This was fault and caused Miss X significant, undue stress and anxiety. In response to my draft decision, Miss X advised that she also asked the social worker about a holiday - not the visit to see her family, but a holiday. This was not addressed either.
- While the assessment covered these points about which Miss X was unhappy, it did not address these in a way which meant her needs would be met in full. The Council’s response to my enquiries confirmed that the assessor was an experienced qualified social worker. It says she would “request additional support from colleagues if she considered it necessary…particularly around autism”. This is reassuring. However, staff conducting needs assessments and making decisions about the lives of adults with autism, should have specialist training in autism. This is stipulated in the 2015 statutory guidance to the Autism Act 2009 and also by the previous 2010 guidance. Eight years ago, in 2015, the guidance said councils should have made good progress on this.
- Miss X has provided us with copies of emails to her social worker about how she might arrange transport to travel to the activities she wishes to attend. She says she has not received a response to her emails. This is a crucial element of Miss X attending activities in the community which were not addressed in the care and support plan. Although Miss X said she could not do these things at the time of the assessment, this should have been addressed when she raised it. She says she has made many suggestions about transport but is always “brushed off”. This is fault and caused Miss X significant and undue stress and anxiety.
- In response to our enquiries, the Council acknowledged its oversight and offered to provide Miss X with a direct payment of £1600 to cover the outstanding cost of the Braille note touch and upgrade. The Council told us that a one off piece of equipment requires specific funding and a separate direct payment; this is usual practice. Paying for such items from the balance in her account, without agreeing an additional direct payment, would put Miss X in deficit. The Council says Miss X’s direct payment account is accessible to her and is her responsibility to manage. However, the agency which holds the account pays the personal assistants, tax and insurance on her behalf. This is in line with the direct payment agreement signed by Miss X. Miss X had a visit from the direct payments team in April 2022 which, the Council says, she found helpful. However, this was before Miss X made her complaint to us.
- The Council says Miss X has been sent a financial assessment form but has not returned it and declined home visits to assist with completion. Miss X denies this. Given her disabilities, a home visit would be appropriate. Miss X has sent me an email showing, on one occasion, the financial officer cancelled the appointment. The Council has offered to arrange for a financial officer, female if possible, to visit Mrs X at home with her advocate present. This is a suitable remedy. In response to my draft decision, Miss X advised me the Council has agreed a lump sum repayment for overcharges and the Council said it would pay this into her direct payment account. Miss X says this is not right and it should go to her bank account where she can use it as she wishes. In response to my revised draft decision, Miss X advised me that she had received a further letter from the Council asking her to complete a financial assessment form.
- Miss X reports difficulties with accessing the Council’s forms which are necessary for her to access from time to time. Miss X says the Council wants to send documents including her assessment, through Microsoft 365 which she has to pay to access. The Council says she has previously received support from the Sensory Visual Impairment Team (SVIT) although this has ended. It seems likely that the SVIT might be able to assist in the understanding of the difficulties Miss X has and how these should be overcome. I will recommend the Council consider further input by this team and to ensure staff have a clear record of any reasonable adjustments required to enable Miss X to access the service effectively.
- It is not our role to decide if an organisation has breached the Equality Act as this can only be done by the courts. We can decide whether an organisation has properly taken account of an individual’s rights in its treatment of them. In this case, the Council has not adequately done this. It must now ensure it considers Miss X’s rights under the Equality Act 2010 (see paragraphs 16 to 23), and ensure it can evidence how it has done this.
Agreed action
- To remedy the injustice caused by the fault identified above, I recommended the following:
- Make a payment of a further £1600 for the original Braille note. This was proposed by the Council. This payment should be made to the account from which it was made.
- Arrange for a female Financial Officer, if available, to visit Miss X at her home, with her advocate present, to complete a financial assessment. This was also proposed by the Council.
- If Miss X is to receive a refund because she has overpaid, it should pay this into an account decided by her, and not into her direct payment account.
- Consider further input by the Sensory Visual Impairment Team to support Miss X with accessing the Council’s systems. This should consider how Miss X will have access to copies of documents such as her assessments and information about the Council’s processes, without the need for support. If this is not possible without support from other people, it should be fully considered as part of a fresh needs assessment (see below).
- Review the decision that the Council cannot provide Miss X with documents electronically without encryption which she cannot access. This should consider options such as sending it attached to an unencrypted email.
- Arrange for a fresh assessment of Miss X’s needs by a social worker with specialist training in autism and with input from a specialist in sight loss. This should be with Miss X’s advocate present. It should include, and fully consider the issues Miss X raised in this complaint – holiday, college, social groups, and transport to these.
- Ensure Miss X has an accessible electronic copy of this assessment immediately following the assessment, so she can read and comment, with support if needed, before it is finalised, without significant delay.
- Ensure staff have a clear record of any reasonable adjustments required to enable Miss X to access the service effectively.
- Ensure staff are trained in autism in accordance with the guidance to the Autism Act 2009.
- The Council has agreed to complete these actions and should provide us with evidence it has done so. It should complete the first five recommendations within one month of my final decision and the remainder within two months.
Final decision
- I have completed my investigation and uphold Miss X’s complaint. If the Council completes the agreed actions, it will remedy the injustice it caused as far as possible.
Investigator's decision on behalf of the Ombudsman