Summary: Mr X complained about the Council’s failure to carry out a prompt and accurate reassessment of his care needs and related matters. We have not found fault with the Council’s assessment process. However, there was fault with the way it handled Mr X's complaint. The Council has agreed to apologise to Mr X and share good practice information with relevant officers.

The complaint

1. Mr X complains about the Council’s failure to carry out a thorough reassessment of his social care needs. In particular, he complains about:
1. delay in carrying out the reassessment;
2. the conduct of the supervising social worker during the reassessment at his home;
3. the failure to carry out a thorough assessment of his care needs; and
4. the failure to properly respond to his complaint.
2. Mr X says this caused significant distress, to such an extent that he contemplated taking his own life.

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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. 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)
5. 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)

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How I considered this complaint

6. I discussed the complaint with Mr X and considered the written information he provided. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint.
7. Mr X and the Council had the opportunity to comment on my draft decision. I considered any comments received before making my final decision.

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What I found

Relevant law and guidance

8. A council should revise a care and support plan where circumstances have changed in a way that affects the care and support plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult concerned about how to meet those needs. (Care Act 2014, sections 27(4) and (5))
9. The High Court has confirmed that an individual’s wishes are not the same as their needs and wishes are not the paramount consideration. A council has to have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))
10. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
11. A person with eligible care needs can have a council arrange their care. Or, if they wish, they can arrange their own care using a payment the council gives them (‘direct payment’). (Care Act 2014, section 31)

What happened

12. The following is a summary of the key events relevant to this complaint. It is not intended to provide a detailed account of everything that happened.
13. Mr X has several health conditions that affect his mobility and general wellbeing. He lives alone and for several years Mr X has employed personal assistants to assist him with daily living. This is funded by a direct payment.
14. In 2021, Mr X says he contacted the Council to say his needs had changed and required more support.
15. The Council says it has no record of such a request being made until February 2022.
16. In March 2022, the Council carried out a telephone assessment (“the March Assessment”).
17. Mr X says he contacted the Council several times because he had not received an update from Officer J.
18. In late May 2022, Mr X was advised a further face to face assessment was needed to obtain more information about his circumstances and the direct payment account. He was told Officer J’s manager would also be in attendance.
19. This assessment took place in early June 2022 (“the June Assessment”).
20. Mr X was deeply distressed by what happened during the visit. He says:

• the officers discussed his circumstances outside his home within earshot of his neighbour. He says this was a breach of confidentiality;
• Officer M was late, did not remove her shoes and generally showed a lack of respect;
• Officer M asked him several questions that he found insulting, intrusive and unnecessary; and
• he was not given the opportunity to express his views and so the assessment failed to take account of his circumstances.

21. After the visit, Mr X was told the Council would not increase his personal budget. It was satisfied Mr X’s assessed needs could be met within his existing budget.
22. Mr X made three formal complaints about the outcome of the assessment and what happened during the visit. He also requested reimbursement of money he had spent on additional care that was not covered by his personal budget.
23. The Council responded in August 2022. The Council:

• apologised for delay in responding to Mr X’s complaint made in June 2022;
• agreed to make a one-off payment £1500 to cover payments previously made to carers in good faith;
• apologised for Officer J failing to remove her shoes;
• explained it was necessary for the social workers to make enquiries about Mr X’s health and routine so as to understand what social care needs the Council was obliged to meet;
• apologised for any distress caused by such questions;
• confirmed that fresh food preparation could be accommodated by Mr X’s existing support hours; and
• Denied there has been a breach of confidentiality when the social workers left Mr X’s home. A brief discussion had taken place in Officer M’s car that was parked away from Mr X’s home with the windows closed.

24. Dissatisfied by this outcome, Mr X complained again. He did not receive a response and so brought his complaint to the Ombudsman.
25. During the course of this investigation, the Council has undertaken a further reassessment, although the outcome of this is not yet known at the time of writing this draft decision.

Analysis

26. It is not the Ombudsman’s role to say what a person’s needs are, or what services they should receive. The Ombudsman’s role is to consider if a Council has followed the correct process to assess a person’s needs. In doing so we look at what information the Council considered. If a Council considers all this information properly the Ombudsman cannot find a Council at fault just because a service user disagrees with its decision, or outcome of an assessment.
27. In this context, I will consider Mr X’s specific areas of complaint below.

Delay in carrying out the reassessment

28. Mr X says he told the Council that his care needs had increased in 2021, but the Council failed to respond. This is disputed by the Council. It says the first record about this issue was in February 2022. This is confirmed by the case records I have seen. There are several entries on his case file about other matters in 2020 and 2021, including a change of address, request for equipment and a neighbour dispute. As the Council has records of several other contacts with Mr X, I have no reason to question the accuracy of the Council’s records.
29. In the absence of any evidence to support what Mr X has said, I do not find fault.
30. There were approximately six weeks between the March and June Assessments. Shortly after the March Assessment, Mr X was told the Council needed to complete a review of the direct payment and Officer J would contact him to arrange this. Mr X was aware Officer J was on a period of extended leave.
31. Having considered the case records, I do not find there was fault in either the time taken to arrange the June Assessment, or the Council’s actions in the intervening period. Mr X was notified of the Council’s intentions shortly after the initial assessment and he was made aware there would be some delay pending = Officer J’s return. The Council also promptly responded to Mr X’s phones calls and queries in the meantime. I am satisfied there was no fault here.

Conduct of the supervising social worker during the reassessment

32. In response to my enquiries, the Council has provided statements from Officer M and Officer J setting out their respective recollections about what happened during the visit to Mr X’s home. Both dispute what Mr X has said about their conduct during the assessment and what happened afterwards in the car.
33. The Ombudsman makes decisions on the balance of probabilities. This part of the complaint is essentially one person’s word and perception against that of two others. There are no independent witnesses about what happened.
34. As I am unable to prefer one account over another, I am unable to make a finding on this part of the complaint.
35. The Council has already apologised to Mr X for Officer M failing to remove her shoes and any distress he felt as a result of the visit. This is an appropriate response, and the Ombudsman cannot add anything further to this.
36. I understand Mr X was extremely distressed following the visit, but this is not necessarily evidence of fault. The Council has explained it was necessary to make enquiries about Mr X’s circumstances and management of his direct payments to make its decision. I have read the case notes from the visit and the statements from both officers. Based on this evidence, my view is that their enquiries were proportionate and appropriate.
37. Mr X says his neighbour made a remark to him that strongly suggested he had overheard a conversation between Officer J and Officer M about him. Both Officer J and Officer M have said in their statements that it would not have been possible for Mr X’s confidentiality to have been breached because:

• the car was parked away from Mr X’s home;
• the windows were closed; and
• the short “debrief” that did occur in Officer M’s car did not reveal any personal information.

38. Again, there are no independent witnesses about what happened. For this reason, I am unable to make a finding about this part of Mr X’s complaint.

Failure to carry out a thorough assessment of Mr X’s care needs.

39. The Ombudsman’s role is to review how councils have made decisions.
40. In this case, Mr X questions why the Council refused to increase the number of support hours in his care plan, when he considers his needs have increased. During both assessments, he explained his health had deteriorated and explained he had been advised by the hospital that overnight care may be required when his health fluctuated. He also specified that he needed more support with meal preparation. He explained he requires fresh, home cooked food to optimise his health and one hour of additional support at lunch time would allow for this.
41. In response to this the records confirm the Council suggested Mr X may wish to consider using the “meals on wheels” service. Mr X says he found this suggestion insulting and demonstrated a fundamental misunderstanding of his health condition.
42. The June Assessment also confirms a discussion took place about overnight care. Officer M explained the Council required more information about this because it appeared to me a request for support with a health need, rather than social care.
43. I appreciate Mr X was unhappy about the Council’s position regarding both overnight care and meal preparation. However, I cannot see any reason to criticise the Council’s enquiries or decision-making process here. Mr X’s care was reviewed, face-to-face and in some detail, by Officer J and Officer M. The Council was entitled to ask questions to confirm public expenditure was necessary.
44. It was also within its remit to discuss different ways Mr X’s needs could be met, for example around his food preparation. Direct payment are designed to allow some flexibility around care arrangements and the Council was satisfied the existing budget allowed for Mr X; s eligible care need for support around meal preparation to be met. Similarly, the Council was satisfied the budget included a contingency for Mr X’s fluctuating needs. There was no fault by the Council by suggesting Mr X use his hours flexibly in this way.
45. These were matters of professional judgement. I appreciate Mr X does not share the officers’ opinions, but this alone does not give me a reason to find fault. I cannot instruct the Council to disregard its officers’ judgement simply because Mr X does not agree.
46. Overall, I am satisfied there is no fault with the assessment process.

Complaint handling

47. I can see from the relevant records that it took two months to respond to Mr X’s original complaint, and then failed to respond further, despite Mr X contacting the Council several times. The Council says it did not receive these letters but wrote to Mr X on 30 September 2022 to which Mr X did not reply.
48. This email advised Mr X that the Council was processing his repayment of £1500. It did not refer, or respond to, his outstanding complaints.
49. The overall delay and failure to escalate Mr X’s complaint is fault. I am also satisfied this caused some distress to Mr X that requires a proportionate remedy (below).

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Agreed action

50. The Council had agreed to take the following action within four weeks from the date of my final decision:
1. apologise in writing to Mr X.
2. Share the Ombudsman’s “Guidance on Effective Complaint Handling” with relevant officers.
51. The Council should provide us with evidence it has complied with the above action.

Final decision

52. I have found the Council to be at fault and the Council has agreed to action my recommendations.

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Investigator's decision on behalf of the Ombudsman