Summary: Ms X complained the Council is at fault in how it assessed and met her care needs since 2014 and for not always making reasonable adjustments when communicating with her. We investigated Ms X’s concerns from 2021 onwards and found fault in how the Council handled these matters. The Council has agreed to apologise to Ms X, make a payment in recognition of the injustice caused to her and to carry out a full review of its handling of her case.

The complaint

1. The complainant, who I shall call Ms X, complained the Council is at fault in how it assessed and met her care needs since 2014 including failing to carry out an assessment to see if her home requires adaptation and safeguarding her from anti-social behaviour (ASB). Ms X says the Council’s actions have negatively impacted her physical and mental health, caused her financial hardship and breached her Human Rights.
2. Ms X also complains the Council failed to make reasonable adjustments to make it easier for her to communicate with it and that its complaints process is flawed.

Back to top

What I have and have not investigated

3. The Ombudsman normally expects complainants to approach him within 12 months of becoming aware of the relevant issue. We will not normally accept a complaint where the person has waited longer than this, without good reason.
4. I have not investigated the Council’s actions before 2021. Ms X was aware of her concerns about the Council’s actions between 2014 - 2020 and she made challenges to its decisions during this period. We therefore consider it was reasonable for her to have approached us with these concerns sooner.
5. Furthermore, because of the passage of time, we do not consider it would be possible to decide if her care needs were accurately assessed between 2014 - 2020.
6. I have investigated Ms X’s concerns about the Council’s actions from 2021 onwards.

Back to top

The Ombudsman’s role and powers

7. 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)
8. 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)
9. 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)

Back to top

How I considered this complaint

10. I discussed the complaint with Ms X and considered information she provided.
11. I made enquiries of the Council and considered the information it provided.
12. I set out my initial thoughts on the complaint in a draft decision statement and considered Ms X and the Council’s comments in response.

Back to top

What I found

13. 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.
14. 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.

Care Plan

15. 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, 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.

Review

16. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government 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.

Human Rights Act

17. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
18. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
19. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

The Council’s complaints policy

20. The policy says stage one complaints should not be responded to by a member of staff who has been named in a complaint.
21. The policy says that if the complainant is unhappy with a stage one response on a complaint about adult social care, then they can approach us.

What I found

22. What follows is a brief chronology. It does not contain all the information I considered during my investigation.
23. Ms X is registered blind and diagnosed with Dyslexia, Dyspraxia, Anaemia, Urinary Frequency, Menorrhagia, Cholecystitis, benign tumours putting pressure on her bladder, anxiety, severe depression, conversion disorder, Post Traumatic Stress Disorder and co-morbid disorders.
24. In January 2013 the Council completed a care and support assessment for Ms X following which it agreed to fund 29 hours of care per week.
25. In December 2014 the Council reviewed Ms X’s care and support plan, following which its Self Directed Support panel (hereafter called the panel) reduced her funding to 22 hours of care per week.
26. In November 2015 the Council reviewed Ms X’s care and support plan, following which its panel reduced her funding to 20.5 hours of care per week.
27. Also, in November 2015 Ms X made a complaint to the Ombudsman about the Council’s decision to reduce her care funding. We decided not to investigate and referred Ms X back to the Council.
28. The Council carried out reviews of Ms X’s care and support plan between 2016 and 2021. Its panel kept funding for her care at 20.5 hours throughout this period.
29. Ms X challenged the Council’s decision to keep her funding at 20.5 hours throughout this period. She also made complaints to the Council.
30. In August 2021 the Council reviewed Ms X’s care and support plan. The plan says:

• Ms X is complimenting the 20.5 hours of care funded by the Council with up to an extra 79.5 hours of care a week. This includes some paid for care and some unpaid care provided by a relative.
• Ms X said she needs overnight care for 9 hours and this can be expensive to fund when her relative cannot provide the care.
• Ms X said funding extra care is putting a strain on her mental and physical wellbeing.
• Ms X receives Constant Attendance Allowance because of her significant need and is exempt from paying council tax.
• There have been a few incidents of ASB at Ms X’s home including somebody urinating on the wall of her home and somebody dumping rubbish. She has CCTV at her home.
• Ms X relies on her carer to help with her correspondence including reading aloud letters. She would benefit from alternative means of communication such as recorded messages that she can listen to at her own pace.
• Ms X has not been offered a stair lift or downstairs bathroom despite not being able to access the first floor of her home.

31. The review decided that 20.5 hours of care was not enough to meet Ms X’s care needs and proposed the panel considered increasing funding to provide 24.45 hours of care.
32. In June 2021 Ms X told the Council about racist and offensive graffiti at her home. It visited and removed the graffiti however it has not done so for subsequent incidents.
33. On 1 September 2021 the panel decided not to increase funding for Ms X’s care. The minutes of the meeting do not explain the reasons for its decision. The minutes show some follow up actions were agreed including:

• requesting an OT assessment;
• completing a Continuing Health Care (CHC) referral checklist and;
• Ms X’s social worker to book an appointment with a colleague to help her prepare a review to challenge the Council’s decision not to increase her care funding.

34. In November 2021 a CHC referral checklist was completed for Ms X. It found she had more than two category ‘A’ needs and a full assessment was required.
35. In February 2022 Ms X’s mental health needs were assessed by Doctor Q, as part of her social worker preparing a report supporting Ms X’s request for extra funding. Doctor Q recommended Ms X be offered the maximum care package to help keep her in her own environment and prevent her PTSD and depression deteriorating. The report also said that Ms X was at a low risk of harm from others.
36. In March 2022 Ms X wrote to Doctor Q about inconsistencies in his report and highlighting that it did not include any reference to the ASB she was experiencing.
37. On 25 March 2022 Ms X made a complaint to the Council about it providing inadequate funding to meet her care needs.
38. On 12 April 2022 the Council replied saying it had undertaken all the relevant assessments and reviews and so it did not uphold her complaint. It said that it would reassess her needs because of the concerns raised in her complaint. The Council’s response was sent by a person involved in the panel decisions Ms X complained about.
39. Unhappy with the Council’s response Ms X approached the Ombudsman for help. She told us the Council:

• has not properly assessed or met her care needs since 2014;
• has failed to make reasonable adjustments to make it easier for her to communicate with it and;
• had failed to safeguard her from incidents of ASB which include people urinating in her garden and exposing themselves in front of her CCTV camera. She said she continues to experience intermittent incidents of ASB at her home but receives no help from the Council or as part of her care and support package.

40. On 15 September 2022 the Council’s panel increased Ms X’s funding by 3.45 hours to 23.95 hours of care a week.
41. On 25 October 2022 an OT visited Ms X’s about adapting her home to make it more accessible. The Council has not told Ms X the outcome of the visit.
42. As part of our investigation we made enquiries of the Council. It had problems replying because of a cyber attack. However, its response said:

• Ms X’s and her carer’s views and objections were included as part of her care assessments, reviews and discussions by the Council’s panel.
• Ms X’s care package is funded by the Council’s Adult Integrated Mental Health Service and this funds all her eligible mental and physical care needs.
• Referrals have been made to the OT department. It did not provide details of the outcome of the referrals.
• Ms X’s requested information and correspondence to be sent by email so she could use software to audio transcribe documents. She also asked for letters to be read to her over the phone. It also asked Ms X’s care co-ordinator to contact her by phone and visit her home to discuss correspondence sent to her.
• It is aware of incidents of ASB at Ms X’s home. It has involved the Police, who have carried out regular welfare checks on Ms X. Its ASB and environmental services teams have visited her home to remove graffiti and she has received ongoing support from her care co-ordinator.

Finding

43. The Council reviewed Ms X’s care and support needs in August 2021.The assessment found Ms X’s care package was not meeting her needs and recommended an increase in funding for her care. Despite this I have seen no evidence the panel considered the result of the review when it met to discuss Ms X’s funding. Minutes of the meeting do not provide any reasons for the decision to reject the increase proposed in the review. This is fault by the Council.
44. Ms X’s funding increased in September 2022 by 3.45 hours a week. I have seen nothing which suggests that Ms X’s needs changed significantly during the intervening period. Therefore, I consider it is likely Ms X should have been receiving this extra funding from August 2021.
45. Ms X has been funding extra care herself and so she did receive care to meet her needs in the period August 2021 to September 2022. However, funding the care, has undoubtedly caused Ms X financial hardship and associated distress. She has also been caused avoidable time and trouble of following a complaint to get the extra funding she needs.
46. I understand Ms X feels the Council did not consider her views when it completed her care assessment review. I do not agree. The review included details of Ms X’s views on her care including what is and what is not working with her care and her request for extra care.
47. The care assessment review of August 2021 says Ms X has not been offered any adaptations to help her access the first floor of her home. Despite this no action was taken by the Council until it completed an OT assessment in September 2022. I am not aware of any other action happening or what the OT assessment concluded and so, it remains unclear what, if any, adaptations are required. This delay is unacceptable and is fault by the Council.
48. The August 2021 review also explained that Ms X is experiencing incidents of ASB at her home. I have seen nothing to show this matter was considered by the panel despite the review explaining that Ms X needed help in reporting incidents. It has failed to provide any evidence showing its ASB team have considered her reports or liaised with her care co-ordinator. The Council should be working across its department and with other agencies, such as the Police, to ensure the safety of vulnerable residents and provide any necessary support.
49. Ms X’s disabilities mean she needs adjustments to be made to make it easier for her to communicate with the Council. The Council’s response to my enquiries did not answer this question clearly nor did it provide evidence to show it has met the reasonable adjustments Ms X has asked for. Recent communications between the Council and Ms X support the view that it is not making the adjustments she has asked for. This is fault by the Council.
50. Ms X complained that her complaint of March 2022 was not responded to in accordance with the Council’s complaint procedures. I agree. An officer involved in the decision she complained about responded to her complaint. The Council’s policy says this should not happen. I find the Council at fault in its handling of Ms X’s complaint.

Back to top

Agreed action

51. Within four weeks of my final decision the Council will take the following action to address the injustice caused to Ms X by the fault I have found:

• Apologise in writing (and transcribed onto audio CD) to Ms X for the fault identified;
• Pay her £4000 in recognition of the lost support from August 2021
• Pay her X £500 in recognition of the avoidable time and trouble caused to her in pursuing this matter and its failure to ensure it meets the reasonable adjustments she has asked for
• Complete an OT assessment to find out if adaptations to her home are required and provide details of the decision, including a timeframe for the completion of any adaptations considered necessary. The decision of the assessment should be provided to Ms X and the Ombudsman.
• Carry out a review of Ms X’s reports of ASB. The review should include all relevant parties including Ms X’s Care Co-Ordinator. The meeting should decide what, if any, actions are required to safeguard Ms X because of her vulnerabilities. The decision of the meeting should be provided to Ms X and the Ombudsman.

52. Within three months of my final decision the Council will undertake a full review of its handling of the Ms X’s case. The review will identify why her concerns about her care package (including her request for help with anti social behaviour) and her request for an OT assessment were not addressed sooner. It will also identify why the Council did not always make reasonable adjustments when communicating with her. The Council will create an action plan explaining how it will prevent a recurrence of the fault we found.
53. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

54. I have completed my investigation and uphold Ms X’s complaint. There was fault by the Council which caused injustice to Ms X. Although Ms X does not agree with my decision, I am satisfied the action the Council will take is sufficient to remedy her injustice.

Back to top

Investigator's decision on behalf of the Ombudsman