Summary: Ms X complained about the Council’s decision making on her mother’s care and support, leaving her mother, Mrs Y, struggling with a shortfall in care. We found fault by the Council causing injustice. We recommended it apologise to Mrs Y, pay her £750 for distress and uncertainty, reinstate her previous package of care, offer a reassessment of her care needs and support, and take action to prevent recurrence.

The complaint

1. Ms X complains on behalf of her mother Mrs Y about the Council’s decision on her care and support needs. Ms X says the Council did not take account of relevant information and made assumptions based on her race, resulting in negative treatment. Ms X says Mrs Y does not receive enough support to meet her needs.

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The Ombudsman’s role and powers

2. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
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 spoke to Ms X and I reviewed documents provided by Ms X and the Council.
7. I gave Ms X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Care assessments

8. The Care Act 2014 statutory guidance is available online. It explains what councils need to do to meet their legal duties. I have referred to relevant parts below.
9. A council carries out a care needs assessment to decide whether an individual has care needs that it must meet. It then completes a care and support plan which sets out how it will meet those needs.
10. The process must be person-centred throughout, involving the person and supporting them to have choice and control.
11. Councils must consider how the adult, their support network and the wider community can contribute towards meeting the outcomes the person wants to achieve.
12. A council is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the council can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.
13. An ‘assessment’ must always be appropriate and proportionate. It may come in different formats and can be carried out in various ways, including but not limited to an online or phone assessment, which can be a proportionate way of carrying out assessments (for example where the person’s needs are less complex or where the person is already known to the council and it is carrying out an assessment following a change in their needs or circumstances)

Carer assessments

14. Where an individual provides or intends to provide care for another adult and it appears that the carer may have any level of needs for support, councils must carry out a carer’s assessment.
15. A carer may choose to refuse to have an assessment. In such circumstances councils are not required to carry out an assessment. 

Equality Act 2010

16. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
17. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. These include race and disability.
18. The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act.

Direct discrimination

19. Direct discrimination is when someone is treated worse than another person or other people because:
• they have a protected characteristic;
• someone thinks they have that protected characteristic (known as discrimination by perception);
• they are connected to someone with that protected characteristic (known as discrimination by association).

Indirect discrimination

20. Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.

Reasonable adjustments for people with disabilities

21. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
22. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
23. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

Council complaints policy

24. The Council publishes it complaints policy on its website.
25. This says it aims to provide a full response in less than 20 working days – and more quickly if the matter is really urgent.

Principles of good administrative practice

26. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
• Keeping proper and appropriate records
• Taking reasonable, timely decisions, based on all relevant considerations
• Understanding the individual circumstances of a case – not falling back on ‘blanket policies’

What happened

27. The Council has provided a copy of Mrs Y’s July 2021 care plan review. This explained Mrs Y was unable to complete tasks herself and needed:
• Formal carer to support with showering
• Formal carer and family to provide meals
• Formal carer to assist with wheelchair to provide access to the community when family not available to do so
• Formal carer to dress Mrs Y when family not available to do so
• Formal carer to clean the home and do laundry; family when they can
28. The plan also says Mrs Y would benefit from three hours’ per week community access which was previously suspended due to the COVID 19 pandemic.
29. The care plan does not say how many hours’ formal care Mrs Y needed however complaint correspondence shows she had a package of care providing:
• 2 x 1.5 hours per week domestic support
• 2 x 1.5 hours per week escort service
• 2 x 1.5 hours per week personal care
30. In 2022 Mrs Y asked the Council to review her care package as her family were no longer able to provide support, her needs had increased and she wanted to be able to go out more and to receive personal care more often.
31. Mrs Y says she asked for a telephone assessment but the Council refused.
32. The Council’s social worker visited Mrs Y to reassess her in person in September 2022.
33. The Council has provided a copy of Mrs Y’s September 2022 care plan review. This reports Mrs Y was unable to complete tasks herself and needed:
• Formal carer to support with showering
• Formal carer and family to provide meals
• Formal carer to assist with wheelchair to provide access to the community 2 x 1.5 hours per week, with family to do so on other occasions
• Formal carer to dress Mrs Y; family to do so on days carer does not attend
• Family to clean the home and do laundry
34. The plan says the cleaning service for two 1 hour slots has been withdrawn because Mrs Y lives with other family members. Mrs Y is therefore ineligible for this support. Although Mrs Y requested extra support to access the local community, she is already receiving two 1.5 hour visits each week; the 3 hours weekly support allocated for this activity. The carer has recorded in the care logs that they are spending time getting Mrs Y ready to access the local community. However, Mrs Y needs to be ready to go out when the carer arrives. It is not in the carer's job description to put shopping away after returning from the community, family could assist with this activity. Family members who live with Mrs Y can escort her into the local community on other days to meet her need for extra stimulation. 
35. The Council has provided a support plan dated 24 October 2022. This says Mrs Y receives:
• 2 x 1.5 hours a week for showering and personal care.
• 2 x 1.5 hours a week for community access.
36. On 6 November Mrs Y complained to the Council:
• It refused her request for a telephone assessment despite Mrs Y explaining she was at high risk of COVID;
• She made clear her needs had increased and her family could not continue to provide support yet the Council disregarded this;
• It made assumptions based on race and compared her to others who received less hours; this was disability discrimination;
• The Council reduced her package of care without notice;
• It failed to take account of her wish to increase her hours. She wanted support to shower four times a week and so needed six hours’ personal care. She needed meals prepared, laundry washed and her bedroom cleaned as her family could no longer do this; so she needed more hours’ domestic support not less. She also wanted to go out more and so needed more escorting hours.
37. On 9 December Mrs Y complained of the Council’s delay in responding.
38. On 23 December the Council replied. In summary:
• It explained at the time a home visit was important as it had not carried out an in person assessment since 2020;
• There were no COVID 19 restrictions in place, the social worker had no symptoms and no-one suggested they should wear a mask or personal protective equipment;
• The social worker recorded the family would be providing less support and considered Mrs Y’s reasons for requesting a reassessment;
• The social worker offered carer assessments for family members but these were refused. Without evidence the family had care needs it was reasonable to consider the two adults could maintain a habitable home. It was reasonable to expect them to maintain and clean the communal areas they used.
• It took the view the community hours were sufficient if Mrs Y was ready when carers arrived;
• The social worker denied making racial comments or commenting on other service users;
• It accepted and apologised that the social worker did not send Mrs Y the amended support plan. This was an oversight and it has acted to prevent recurrence;
• It did not uphold any other complaint but reoffered carer assessments and a new care assessment. It also asked that Mrs Y consider a referral for advocacy and use of an independent interpreter during the reassessment.
• It referred Mrs Y to the Ombudsman.
39. Mrs Y contacted the Ombudsman. She added that:
• The social worker suggested an increase in hours yet the panel reduced them.
• The social worker made assumptions based on her race, commenting that Asian families really try to care for their parents.
• She had a recording of the assessment to prove what was said.
40. When I spoke to Ms X I asked for a copy of the call recording however she did not wish to provide this.
41. I asked the Council for records if its panel decision making. It clarified that the decision did not go to a panel rather the care plan produced by the social worker was quality assured and then approved by a manager.
42. In response to a draft decision the Council said it did not have a blanket policy regarding the provision of care hours for community access. Therefore, it did not need to change local guidance. It accepted the remaining recommendations.
43. In comments on a draft decision Ms X said:
• The Council previously told them the decision went to its panel, so it gave inaccurate information.
• No-one in the home was Mrs Y’s carer currently.
• Mrs Y wanted a different social worker to complete the reassessment, and for the assessment to be recorded.

Findings

44. My role is to investigate the Council’s decision making; not to reach my own decision. A care assessment must be person centred but that does not mean a council must agree to every request made by the service user.
45. It is up to the Council how it carries out a care assessment. The Council considered Mrs Y’s request for a telephone assessment and explained why it required a face to face appointment. It later explained why it did not consider COVID was a reason not to meet face to face. I find no fault in its decision making.
46. Mrs Y says she told the social worker her family would be reducing support. While the care assessment and care plans I have seen do not record this, the Council says the social worker recorded this. I therefore accept the Council was aware Mrs Y’s family would be reducing their support and so should have taken this into account.
47. The Council decided Mrs Y’s family could offer either the same or more care to her than previously. However, its records do not show they were willing and able to do so, further the Council had information to the contrary. I therefore find the Council did not take into account the law in deciding on Mrs Y’s care and support plan. I say this because a Council must meet eligible needs unless a carer is willing and able to do so; it cannot assume or insist on family providing care. I find fault in the Council’s decision making.
48. The Council decided Mrs Y’s community access was sufficient if she was ready to leave the house when carers arrived. However, it did not take into account Mrs Y cannot complete any task herself and needs help dressing before she can leave. It also did not take into account the reduction in family support, as above. I therefore find fault in the Council’s decision making.
49. The documents seen suggest the Council decided Mrs Y’s community hours based on a blanket policy of allowing 3 hours per week. However, the Council should not fetter its discretion. This is further fault. The Council has since confirmed it does not have a blanket policy in this regard. In the likelihood this is a one off, I have not made any service improvement recommendation.
50. The Council decided to remove Mrs Y’s domestic hours on the basis other adults in the property could maintain the home. However, as above, the Council cannot assume or insist upon others meeting eligible needs. I therefore find fault in the Council’s decision making.
51. Where it is one person’s word against the other I am unable to reach a finding. While Ms X and other family present say the social worker made discriminatory comments the social worker denies this. Without evidence to support Mrs Y’s complaint, such as a call recording, I cannot find fault.
52. The Council accepts its did not send Mrs Y an updated care plan. This is fault. I note the Council has since apologised and explained this was an oversight.
53. I am satisfied the faults identified above affected the Council’s decision on Mrs Y’s care needs and how these would be met. Given Mrs Y’s family were reducing support the Council should have provided more support, not less. It also may have increased support had it properly taken account of Mrs Y’s wishes and needs. I am therefore satisfied Mrs Y has suffered a shortfall in care causing distress. This is injustice. Further, she has suffered uncertainty as to whether she should have received an increase in care. This is injustice. Given the impact of reduced care to Mrs Y and the length of time involved, I consider a higher payment than usual for distress is justified.
54. I will recommend the Council reinstate the previous package of care pending a reassessment. I note Mrs Y wants this to be a telephone assessment but it remains for the Council to decide on the manner of assessment. The Council should give reasons for its decision. It will be open to Mrs Y or her representative to raise a new complaint should they be unhappy with the Council’s decision making.
55. I note Mrs Y also wants to specify who carries out the assessment and wants it recorded. However, it is up to the Council to make these decisions. I cannot specify how the Council conducts the assessment.

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Agreed action

56. To remedy the injustice above the Council should carry out the following actions:
57. Within one month:
• Provide Mrs Y with a written apology for failing to decide on her care and support in line with the law;
• Pay Mrs Y £750 for distress and uncertainty;
• Reinstate Mrs Y’s package of care as provided in July 2021 pending a new assessment in line with the Care Act 2014;
• Offer to reassess Mrs Y’s care needs again, taking into account her wish to have a telephone assessment and, inform Mrs Y of its decision and reasons for its choice of assessment.
58. Within three months:
• Provide guidance to staff working in Adult Social Care to ensure they understand the Council’s duty to meet eligible care needs unless a carer is willing and able to do so.
59. The Council should provide us with evidence it has complied with the above actions.
60. The Council has accepted my recommendations.

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Final decision

61. I find fault in the Council’s decision making on Mrs Y’s care needs and support causing injustice. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman