Summary: Mr R complains for his brother-in-law (Mr L) who has care and support needs. He says the Council failed to complete a mental capacity and care assessment for Mr L in a timely way. Mr R explains this meant Mr L’s eligible care needs were not identified and met by the Council when they should have been. Our investigation found the Council was at fault for a serious delay in carrying out these assessments. This resulted in Mr L not receiving payments to fund necessary professional care. The fault identified caused an injustice and the Council has accepted our recommendations to put this right.

The complaint

1. The complainant, who I refer to as Mr R, is making a complaint on behalf of his bother in law (Mr L) who has care and support needs. In particular, Mr R says the Council failed to promptly undertake a care assessment to identify the level and nature of Mr L’s needs. Also, Mr R says the Council has been unhelpful by not proactively working with him and responding to his concerns as Mr L’s representative to deliver a positive result.
2. Separately, Mr R’s complaint refers to a Council social worker not attending legal proceedings about a visa application for Mr L’s wife.
3. In summary, Mr R explains these failings have meant Mr L has not been receiving the care and support he is legally entitled to. As a desired outcome, he wants the Council to provide Mr L with a care assessment and meet any needs identified as being eligible under the relevant legal frameworks.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 or has not done. (Local Government Act 1974, sections 26B and 34D, as amended).
7. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended).
8. 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

9. I have read Mr R’s complaints to the Council and Ombudsman. I have produced this report following examining relevant files and documents and making enquiries of the complainant and relevant employees of the Council. I have also had regard to applicable legislation, guidance and policy. I provided the complainant and Council with a confidential draft of my decision and invited their comments. The comments received were considered before my decision was finalised.

Back to top

My findings

Background and legislative framework

The Care Act 2014

10. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. This 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.
11. Before a plan and personal budget can be made, local authorities must first assess the person’s needs. 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 well-being 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.
12. 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. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 are used to identify the needs which must be met by a council. Where a council has determined a person has eligible needs, it has a legal duty to meet these needs, subject to certain financial criteria.

Mental capacity

13. The Mental Capacity Act 2005 sets out the principles for working with people who lack capacity to make a particular decision. These are particularly important for assessing care needs as a person lacking capacity may not be able to request an assessment, or express their needs. An assessment of mental capacity should set out what decision needs to be made, whether the person is able to make that decision and the evidence supporting the assessor’s view.
14. Where it is found that a person lacks capacity to make a particular decision, any act done for or any decision made on behalf of that person must be done or made in their best interests. Councils must take into account, if it is practicable and appropriate to consult them, the views of anyone named by the person as someone to be consulted. Further, Council’s must carry out supported care assessments where it appears a person may lack mental capacity to request care and support and express the level of their needs.

Personal budgets and direct payments

15. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. 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 enough to meet the person’s care and support needs.
16. There are three main ways a personal budget can be administered:
1. as a managed account held by the council with support provided in line with the person’s wishes;
2. as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
3. as a direct payment.
17. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure 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.

Public sector equality duty

18. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
1. eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
2. advance equality of opportunity between people who share a protected characteristic and those who do not; and
3. foster good relations between people who share a protected characteristic and those who do not.
19. 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.

Chronology of events

20. In 2019, Mr L experienced a serious health problem. The Council has confirmed it had knowledge of this and that a social worker was assigned to support him in 2020. Mr R says he had various dealings with the Council which assigned a social worker to assess Mr L’s care needs, though no assistance was offered.
21. In February 2022, Mr R made a formal complaint to the Council on behalf of Mr L. He complained the Council had not provided any care and support to Mr L, nor had it assessed his needs. He also complained about a Council social worker not attending court for a matter relating to a visa application for Mr L’s wife.
22. The Council responded that it could not reply to Mr R’s complaint because it had not received any consent from Mr L that Mr R could represent him. The Council provided Mr R with a consent form for him and Mr L to complete. Mr R returned the form, but due to the way it had been completed, it was not valid.
23. In early July 2022, the Council wrote to Mr R explaining why it could not take a complaint from him about Mr L without written consent. The Council said it would ensure a social worker meets with Mr L to assess whether he has mental capacity. It explained this would allow it to make a decision about allowing Mr R to make a complaint and access to his personal information, such as health records.
24. Further, the Council explained that if it assessed Mr L as having capacity, the social worker would provide him with a consent form allowing Mr R to make the complaint. The Council also said it would complete a care assessment to find out Mr L’s needs which, if eligible, could be met through Council services.
25. In late July 2022, the Council wrote to Mr R to inform it would not progress the complaint any further. It said this is because the consent form it received was not acceptable due to Mr L not completing it. The part of the form requiring Mr L to complete and sign had been completed by Mr R.
26. In March 2023, the Council started and completed its care assessment of Mr L. It also undertook a mental capacity assessment at the same time. The Council determined that Mr L did have mental capacity. It also found that Mr L had eligible care and support needs. The Council found Mr L required daily home care visits to support him in a range of daily living tasks. The Council provided Mr L with a personal budget of which commenced in early May 2023.

My assessment

Time limits

27. By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this respect. Mr R refers to a lack of care and support from the Council for Mr L since 2019. In my view, there is no reason why Mr L or Mr R could not have complained to us sooner. I am also unable to form a judgement about what Mr L’s historical care needs were. I am therefore limiting the scope of my investigation and will only investigate matters since the date Mr R made a formal complaint to the Council in February 2022. I will not investigate earlier events as the restriction I describe at Paragraph 6 (above) applies.

Visa application

28. Part of Mr R’s complaint relates to a Council social worker not attending court to give evidence in respect of a visa application for Mr L’s family member. I have no legal jurisdiction to investigate any matter which happened in court. The restriction I describe at Paragraph 7 (above) applies.

Mental capacity assessment

29. When Mr R made a formal complaint, the Council had notice of the possibility that Mr L may have care needs. The Council may have had notice earlier than this, though that it outside the scope of my inquiry. The Council then sought to obtain written consent that Mr L wished to authorise Mr R to complain on his behalf. I have read the consent form Mr R provided the Council. This was not valid consent because Mr R had signed part of the from which Mr L needed to sign, as well as other areas being left blank. During the time Mr R was trying to act on Mr L's behalf, the Council had cause to believe that Mr L may lack mental capacity. The Council told Mr R in July 2022 that it would complete a mental capacity assessment for Mr L. The evidence shows the Council did not carry out this assessment until March 2023. In my view, the circumstances required a prompt response and for an assessment to be completed before August 2022.
30. There was a serious delay of 8 months by the Council carrying out a mental capacity assessment and so I find fault. However, it should be noted that when the Council first assessed Mr L’s needs in June 2020, it did assess his mental capacity and decided he was able to make informed decisions. My finding of fault therefore is limited to the Council giving information and advice on this subject and not performing agreed actions in a timely manner. I considered whether the Council complied with its public sector equality duty in relation this. Though there was an unjustifiable delay, the evidence shows the Council considering this matter and taking steps to give effect to its legal responsibilities.
31. I must now consider whether an injustice has been suffered as a result of the identified fault (above). This means identifying whether Mr L or anyone else has suffered serious loss, harm or distress because of the delay. The mental capacity assessment in both 2020 and 2023 found that Mr L did have capacity and that he was able to communicate his needs on his own. It follows that the issue of the Council’s delay to assess Mr L’s mental capacity did not cause him loss, harm or distress. Had the assessment outcome been different, this may have been an aggravating factor. Even though Mr L did not directly lose out by the fault, he and Mr R were promised an assessment which was considerably delayed. I am satisfied the fault caused an injustice limited to stress and uncertainty.

Care assessment

32. The care assessment was also completed in March 2023. However, the Council did not complete a care and support plan for Mr L until May 2023. The assessment identified that Mr L did have eligible care needs. The Council agreed to meet these needs by making direct payments to Mr L so he could employ an assistant to provide him support. I have considered that Mr L had capacity to request a care assessment himself and that he did not do so. That said, the Council said it would complete an assessment for Mr L in July 2022. I would expect the Council to have completed an assessment and made arrangements to meet any identified needs by August 2022. There was a serious delay of 9 months by the Council in meeting Mr L’s eligible needs. I do therefore find fault.
33. To assess injustice, I have read Mr L’s care and support plan which sets out his needs the services for care and support he requires. This includes a care professional providing support for three hours each day to assist with his daily living at home. Mr R has confirmed that Mr L’s needs were met on account of him and his family stepping in to meet these. Insofar as to how the fault impacted Mr L, the injustice is limited because someone was providing care and support. However, it is more likely than not that the support he received was not of a standard he would have received from a trained professional.
34. The injustice mainly relates to those who provided care and support which should have been met by the Council. The Council calculated the total cost of these services as around £305 per week. This is what the Council has paid to Mr L as a direct payment since early May 2023. I find the Council should have been paying this amount to Mr L since the beginning of August 2022. I find Mr L did not receive 39 weeks of direct payments he should have received. I am therefore recommending the Council backpay the amounts due to Mr L for this period.

Back to top

Agreed actions

35. To remedy the fault and injustice identified, the Council will perform the following actions within one month of my final decision statement:
1. Provide a written apology to Mr L and Mr R which recognises the fault and injustice identified in this statement.
2. Pay Mr L £11,830 as a back payment of the direct payments he was entitled to receive from the beginning of August 2022 to the end of April 2023.
3. Pay Mr L and Mr R each £200 to serve as an acknowledgement of their frustration caused by the Council’s delays completing the necessary care and mental capacity assessments.
36. The Council will also perform the following actions within three months of my final decision statement:

d) At a senior level, the Council will carry out a detailed review into the failings identified in this statement. The purpose of the review is to identify why, when the Council had notice Mr L may lack capacity and have care needs, there was a delay in carrying out the assessments. The Council will adopt measures to identify similar cases and to prevent delays of this nature from occurring in the future. The review should also be used to inform any needed policy changes and training and guidance to caseworkers.

37. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

38. The complaint is upheld. The Council was at fault due to a serious delay in performing its legal duties, namely, to conduct a mental capacity and care assessment for Mr L. This delay caused Mr R and Mr L anger and frustration. It also meant Mr L’s eligible needs were not identified and met when they should have been. It also resulted in Mr L not receiving payments to fund professional care and support. It is also more likely than any support Mr L received from family informally was not of standard he would have received from a trained professional. The failings caused an injustice and the Council has agreed to my recommendations to remedy this.

Back to top

Investigator's decision on behalf of the Ombudsman