Summary: Mr X complained the Council failed to meet his care and support needs which were established in a care and support needs assessment in 2017. There was no fault by the Council.

The complaint

1. Mr X complained the Council failed to meet his care and support needs which were established in a care and support needs assessment in 2017. He wants the Council to provide him with a personal budget to meet his care and support needs.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
3. 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. In this case, I have decided to investigate Mr X’s complaint which refers to matters from 2017. This is because it is closely connected to a complaint we upheld in 2020 and the matter has been ongoing since then. (Local Government Act 1974, sections 26B and 34D, as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

5. I considered the information Mr X and the Council provided.
6. Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered any comments I received before making a final decision.

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What I found

Assessment of care and support needs

7. 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.
8. The Care Act states the duty to meet eligible needs (needs which meet national eligibility criteria).

Refusal of an assessment

9. An adult with possible care and support needs or a carer may choose to refuse an assessment. In these circumstances, councils do not have to carry out an assessment.

Care plans

10. 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. The care and 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.

Personal budget

11. A personal budget is a statement which specifies the cost to councils of meeting eligible needs.

Our previous investigation in 2020

12. Mr X has a health condition. In Mr X’s previous complaint to us, he said in 2017, the Council had completed a care and support needs assessment with him and it identified he had eligible care and support needs and so was eligible for a personal budget. The Council had a duty to meet Mr X’s eligible needs. Our investigation found it did not and so it was at fault. As part of our remedy to address the fault by the Council, we recommended the Council to:
• pay Mr X £1400 to acknowledge the care and support he had not received from 2017 and;
• use a mediation service with Mr X to come to an agreement over how it will meet his eligible care and support needs identified in the assessment from 2017.

The Council agreed to comply with these recommendations.

What happened

13. Following our previous investigation, in December 2020, the Council attempted to complete a care and support needs assessment with Mr X. The Council was not successful because Mr X refused to provide further information to the Council about his physical health. He said nothing had changed since the previous assessment in 2017. The Council arranged a follow-up meeting with Mr X to complete the assessment however the meeting did not take place due to pressures on the Council from COVID-19.
14. In July 2021, the Council arranged a further meeting with Mr X to complete the assessment however, Mr X told the Council he no longer wanted it to assess his care and support needs.
15. In December 2021, the Council contacted Mr X again to complete an assessment however again, Mr X told the Council he did not want an assessment. During this time, the Council told Mr X it was not possible to rely on the assessment from 2017 to determine what his needs were now as a lot of time had passed and people’s situations can change.
16. In January 2022, Mr X complained to the Council. He wanted to know why the Council had not told him it could no longer base his current care and support needs on the assessment from 2017. He said his care and support needs had not changed since 2017. Mr X also wanted to know why the Council had not offered him a mediator to support him with the process.
17. In February 2022, the Council responded to Mr X and said:
• it acknowledged Mr X said his care and support needs had not changed since 2017 however, it needed to base care plans and personal budgets on recent information;
• Mr X initially wanted an advocate to support him with the assessment process therefore, the Council acted in line with his wishes and provided him with an advocate. However, this did not work. The Council attempted to complete the assessment without an advocate or a mediator which was also unsuccessful. Since then, it had located a mediator but the process took longer than expected. It apologised to Mr X for not finding a mediator sooner. The Council added, “the aim of the meeting with the mediator would be to come up with a plan for agreeing what your needs are, in a way that is as helpful and comfortable as possible for you”; and
• to help the Council establish what Mr X’s needs were and how they could be best met, it would likely need supporting information from his General Practitioner (GP) or another clinician.
18. Following this, Mr X met with a mediator of his choice from a charitable health and social care service. The mediation process was unsuccessful because Mr X requested the Mediator to instruct the Council to pay him a set amount personal budget. The Mediator told Mr X they could not do this.
19. In April 2022, the Council contacted Mr X and told him it was not the role of a mediation service to instruct the Council to pay him a set amount personal budget. The Council was still committed to supporting Mr X with completing the assessment of his care and support needs. It asked Mr X to let it know if he was happy to continue with the assessment and if he required any reasonable adjustments to support him with the process.
20. Mr X did not respond to the Council’s proposal of continuing with the assessment. Instead, Mr X complained to the Council in July 2022. He said the Council did not follow the Ombudsman’s recommendation from his complaint in 2020.
21. The Council responded to Mr X. It said it was committed to help Mr X but could not agree with his wish for the Council to reinstate an assessment from 2017 without any further discussion. Mr X also did not give the Council consent for it to contact his GP or any other clinician for supporting information of his health condition. The Council said it had tried its best to engage with Mr X and resolve his complaint but it was unable to do so. However, the Council encouraged Mr X to contact it to continue with the assessment.
22. Mr X remained unhappy and complained to us.

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Findings

23. Mr X wants the Council to provide him with a personal budget based on a care and support needs assessment which was completed in 2017. The Council cannot do this as it does not have an up-to-date assessment of Mr X’s care and support needs. Mr X told the Council his needs have not changed since 2017 however, the Council cannot determine this without an assessment informed by up-to-date information about Mr X, his health and how this impacts his daily living. The Council was not at fault. It is reasonable for the Council to complete a new assessment of Mr X’s care and support needs as they may have changed since his last assessment in 2017.
24. Since Mr X’s previous complaint to us in 2020, the Council has attempted to engage with Mr X to complete an assessment of his care and support needs in order to determine his eligibility for care and support under Section 18 of the Care Act 2014. I consider it made reasonable efforts to do this. Although there were delays by the Council in finding a mediator and because of the pandemic, on the balance of probabilities, I am satisfied the outcome would have been no different had mediation taken place in a timely manner. I am satisfied the Council’s reasonable efforts have been met with Mr X’s refusal to co-operate and so, there was no fault.
25. If Mr X requires help from the Council for his care and support needs, it is open for him to contact the Council for an assessment.

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Final decision

26. I have now completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman