Summary: Mrs X complains the Council failed to deal properly with the assessments of her sister’s, Mrs Y’s, needs by denying her the support she needed to participate fully in them. The Council failed to address Mrs Y’s need for family support with assessments. This caused avoidable distress for which the Council should apologise.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to deal properly with the assessments of her sister’s, Mrs Y’s, needs by denying her the support she needs to participate fully in them.

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What I have and have not investigated

2. I have investigated the Council’s actions in assessing Ms Y’s needs under the Care Act 2014. I have not investigated its actions when it has been acting on behalf of the NHS, but we have referred Mrs X’s concerns about them to the Parliamentary and Health Service Ombudsman (PHSO). Nor have I investigated its actions as part of the multidisciplinary team which assessed Mrs Y for NHS Continuing Healthcare. There is nothing meaningful we could achieve by doing this, as the NHS is accountable for decisions on NHS Continuing Healthcare. Those decisions are appealable and ultimately fall within the remit of PHSO.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
5. We can investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as NHS organisations. (Local Government Act 1974, sections 25 and 34A, as amended)
6. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. This includes complaints where a council has acted on behalf of an NHS organisation, but the NHS organisation remains ultimately responsible for the issues raised. (Local Government Act 1974, section 24A(1), as amended)

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How I considered this complaint

7. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mrs X and the Council, for me to consider before making my final decision.

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What I found

What happened

8. Following a stroke, Mrs Y cannot walk or write and has limited verbal communication. After spending time in hospital and respite care, she moved to extra care housing in April 2021. She has a package of care arranged by the Council. This comprises four calls a day, plus two floating daytime visits and one night-time visit to reposition her and provide continence care. Mrs X lives about 80 miles away from her sister.
9. The Council assigned Mrs Y a social worker, following problems after her move back into the community. The social worker contacted her Speech and Language Therapist (SLT), who provided information to support Mrs Y’s communication skills. The SLT said her extra care housing should also have a selection of communication tools.
10. On 22 April the social worker told Mrs X she had arranged to visit Mrs Y on 29 April. However, the visit did not go ahead as Mrs Y was in hospital.
11. On 11 May Mrs X asked the social worker about progress in completing a checklist for NHS Continuing Healthcare (to decide whether she needed referring to the NHS for a full assessment). The social worker said she had not yet met Mrs Y so would arrange a visit with the SLT. Mrs X said she was having a break from 13 to 23 May, so could not visit during that time but was contactable on her mobile.
12. The social worker visited Mrs Y on 1 June with the SLT. She told Mrs Y she was there to review her care needs and to complete a checklist for NHS Continuing Healthcare. However, as Mrs Y was in discomfort, they decided to rearrange the visit. The Council arranged for Mrs Y to receive a night-time call with two care workers. Mrs X says the Council did this at the request of the care provider and did not discuss it with Mrs Y. The SLT noted the plan was to continue to provide supported communication to the social worker over assessing Mrs Y’s needs.
13. When Mrs X called, the social worker told her about the visit. Mrs X asked about progress with the checklist for NHS Continuing Healthcare. The social worker said she would follow this up next week. Mrs X says the social worker did not mention the plan to review Mrs Y’s needs.
14. The social worker visited Mrs Y again on 11 June 2021 to assess her needs. Mrs X was with her sister. Neither had been aware the other would be there. The social worker said she was there to update her sister’s care needs assessment and complete an NHS Continuing Healthcare checklist, bit did neither. Mrs X gave the social worker the dates of her holiday and the social worker agreed to arrange the checklist meeting around those dates.
15. The social worker completed an assessment on 8 July. However, she postponed completing the checklist pending further information on Mrs Y’s swallowing difficulties. The assessment referred to Mrs X as a “relevant person” who had power of attorney for her sister’s finances. It did not address the need for advocacy. It said Mrs Y “has limited verbal communication skills and needs assistance to communicate her needs/wishes/choices. She remains having expressive aphasia with word finding difficulties and higher level language issues. Letter board has been used but [Mrs Y] finds it difficult to put words together and formulate words or sentences that are coherent. According to (SLT) she recommends that [Mrs Y] is given an opportunity to point to Yes or No. She can at times verbally say Yes or No but finds it difficult to communicate words in a sentence. [Mrs Y] is able to use gestures and facial expressions. She needs to be given time to comprehend the question before she gives an answer. [SLT] agreed to continue supporting [Mrs Y] with communication skills when she first moves to her new flat at [extra care housing]. [SLT] has provided staff with visual communication sheets. Communication/non verbal communication has improved as the staff have got to know [Mrs Y] and she has got to know and trust them”.
16. Mrs Y’s care and support plan provided for four double handed visits a day, plus two floating visits to support with transferring her to a chair for as long as she could tolerate and to return her to bed. It said Mrs Y did not need night-time visits as she slept well, but she could use a call bell to ask for help if she needed it, for which there would be no charge unless it became regular and was identified as a long-term need. However, the social worker had identified this as a long-term need and agreed with the care provider that it would meet this need.
17. On 23 July the social worker completed a checklist for NHS Continuing Healthcare with Mrs Y, which triggered the need for a full assessment by the NHS. When responding to Mrs X’s complaint, the Council accepted it should have offered the possibility for her to act as a representative for her sister, as Mrs Y had previously given consent for this.
18. The social worker sent Mrs X a copy of the checklist on 26 July and invited her to provide comment by 28 July.
19. On 28 July Mrs X told the social worker the checklist did not fully reflect her sisters circumstances. In particular she referred to communication difficulties when distressed or in pain, and a bad reaction to a change in her epilepsy medication which resulted in a traumatic hospitalisation. The social worker noted the checklist was not intended to be a full assessment but to identify if someone needed a full assessment for NHS Continuing Healthcare.
20. On 2 August Mrs X asked the Council to confirm that whenever it assessed her sister in connection with the NHS’s Continuing Healthcare assessment:
• an SLT would be present; and
• Mrs X could be present.
21. On 6 August the social worker told Mrs X it was not possible for an SLT to be involved at every stage of the assessment but she would send the SLT team an assessment to complete. She said she would send Mrs X some dates as to when the NHS Continuing Healthcare assessment would be held, so Mrs X could be involved.
22. On 12 September Mrs X told the social worker she would be visiting her sister the next day.
23. On 13 September the social worker e-mailed Mrs Y’s extra care housing. She said she had planned to visit that day but decided not to as Mrs X was visiting and she “felt it would be too much [for Mrs Y] to have me visit also”. The social worker asked if a member of the care team could help with communication if she visited on 14 September.
24. On 14 September Mrs Y’s social worker completed a social care assessment for the NHS’s Continuing Healthcare assessment.
25. Mrs X says the Council has not reviewed Mrs Y’s needs since 2021. Her sister remains in her extra care housing. Mrs X has not raised any concerns about the arrangements for meeting her sister’s needs.

Is there evidence of fault by the Council which caused injustice?

26. Under the Carer Act, part 1, section 9 (5) (c), the Council must involve any person whom the adult asks it to involve in the assessment of their needs. The Council should have checked with Mrs Y if she wanted support with her assessments, care and support planning, and reviews of her needs, and if so from whom. These activities are meant to be person centred, with every effort taken to ensure the individual can participate as fully as possible and receives whatever support they need. Mrs Y wanted her sister to be involved, but that opportunity was taken away from her. Given that she had given Mrs X power of attorney for her finances and had already given consent for her to represent her over the checklist for NHS Continuing Healthcare, it should have been clear to the Council that she was likely to want her support with its assessments.
27. The failure to check with Mrs Y what support she wanted, deprived her of the opportunity to take part as fully as possible in the assessments, care and support planning and reviews of her needs. It left her feeling disempowered, with the Council making decisions for her, rather than with her. It is not possible to say her needs would have been met in different ways, if she had received support from Mrs X. However, the Council’s failure caused avoidable distress, for which an apology is appropriate.
28. The Council accepts it did not involve Mrs X in her sister’s checklist for NHS Continuing Healthcare and has apologised.
29. Mrs X says the Council made arrangements with third parties (e.g. the care provider and the SLT) before visiting Mrs Y but did not check with Mrs Y before visiting. The evidence supports this claim, which is another example of a lack of a person-centred approach, which is fault by the Council.
30. The Council explained it could not involve the SLT in every stage of the assessment. That was not at fault by the Council. The SLT had provided guidance to the care provider on communicating with Mrs Y and the Council checked with the care provider that someone would be available to assist with communication. However, that does not alter the fact that the Council was at fault over the lack of a person-centred approach to assessing Mrs Y’s needs and the failure to ensure she received support from her sister when she wanted it.
31. Under the Care and Support Statutory Guidance, councils should review people’s care and support plans whenever necessary and at least every 12 months. If the Council has not reviewed Mrs Y’s care and support plan since 2021, it needs to do so without further delay. It also needs to make sure Mrs Y has whatever support she wants with the review.
32. Mrs X also says the Council made changes to Mrs Y’s care and support on 1 June at the request of the care provider but without discussing the change with Mrs Y. Given that Mrs Y was unwell that day and the social worker had to curtail her visit, that does not amount to fault.

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Agreed action

33. I recommended the Council:
• within four weeks writes to Mrs Y and Mrs X apologising for the distress caused by the failure to address Mrs Y’s need for support with assessments, care and support planning and reviews;
• within six weeks review Mrs Y’s needs, involving Mrs X, if that is what Mrs Y wants; and
• within eight weeks takes action to ensure officers do not overlook their duty to ensure people receive whatever support they need with assessments, care and support planning and reviews of their needs.

The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation on the basis there has been fault causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman