Summary: Mr D complained the Council has failed to provide him with the care and support he requires. We found fault which caused injustice. The Council has agreed to take the actions at the end of this statement to remedy this.

The complaint

1. Mr D complained the Council has failed to provide him with the care and support he requires since April 2022 and that Council officers have been abusive and hostile with him.
2. This has caused him significant distress and to not have the care he requires, so his wellbeing is suffering and he has had to pay for his own care, causing him to be destitute.

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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. We cannot investigate a complaint about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
6. We provide a free service but must use public money carefully. We may decide not to continue with an investigation if we decide there is another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6))
7. 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

8. I spoke to Mr D about his complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance (“the Guidance”)
• The Care and Support (Eligibility Criteria) Regulations 2015 (“the Regulations”)
9. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Care and support needs

10. The Care Act 2014 requires 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 determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
11. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Assessment process

12. Assessments must be appropriate and proportionate and person-centred. 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.
13. If a person would have substantial difficulty in being involved in the assessment, the council must find someone appropriate and independent to support and represent them.
14. The Guidance does not specify timescales for assessments. It says councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs.
15. Councils can offer individuals a supported self-assessment and must do so if the adult or carer is able, willing and has capacity to undertake it. Once the person has completed the assessment, the council must ensure that it is an accurate and complete reflection of the person’s needs, outcomes, and the impact of needs on their wellbeing.

Who can carry out a care and support needs assessment

16. The Guidance says assessments can be carried out by a range of professionals including registered social workers, occupational therapists and rehabilitation officers. The assessor must be appropriately trained. (Care & Support Guidance, paras 6.7, 6.84)
17. When assessing particularly complex or multiple needs, an assessor may require the support of an expert to carry out the assessment. Where the assessor does not have the necessary knowledge of a particular condition (such as autism), they must consult someone who has relevant expertise. The Autism Act 2009 required the Government to produce statutory guidance for councils. This guidance says councils must provide specialist autism training for key staff, such as care assessors.

Eligibility for support from the council

18. In considering whether an adult with care and support needs has eligible needs, councils must consider whether:
• the adult’s needs arise from or are related to a physical or mental impairment or illness; and
• as a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes (such as maintaining personal hygiene and accessing work or education); and
• as a consequence of being unable to achieve these outcomes there is, or there is likely to be, a significant impact on the adult’s wellbeing.
19. When a council has decided a person is or is not eligible for support it must provide the person (or carer) with a copy of its decision.

Meeting needs

20. 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 judgment in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))
21. Councils may meet a person’s eligible needs in a variety of ways, including by providing support, making a direct payment, or providing equipment/adaptations. Needs may also be met through services which are available universally, including for example, by putting a person in contact with a local community group or voluntary sector organisation. (Care & Support Guidance, para 10.13)
22. Councils are not under a duty to meet any needs that are being met by an unpaid carer (such as a family member).

Care and support plan

23. Councils must provide a care and support plan which says 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 plan “should be completed in a timely fashion, proportionate to the needs to be met” and councils “should not unduly delay needs being met”.
24. The council must take all reasonable steps to agree with the person how needs will be met. In the event that the plan cannot be agreed with the person, the council should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. This may require going back to earlier elements of the planning process.
25. Councils should conduct a review of a care and support plan at least every 12 months and if the adult asks for one.

What happened

26. I have set out the key events. This is not meant to detail everything that has happened.
27. Mr D has autism, anxiety and continence issues. He is being assessed for ADHD. Mr D has had depression and has been suicidal.
28. In April 2022, Mr D called the Council and asked for a care and support needs assessment. He said his anxiety was severe, he was having self-harming thoughts and he was struggling to cope. The case was allocated to a social worker who arranged to assess Mr D on 1 June 2022.
29. Mr D says that day the social worker called him before the assessment, asked him if he was able to shave and said the Council “were not babysitters”. Mr D says this attitude caused him distress so he cancelled the assessment and asked for it to be done another time. The Council then closed Mr D’s case as “assessment refused”.

First care and support assessment, July 2022

30. Mr D contacted the Council again on 28 June chasing his assessment. The Council apologised that the case had been closed. It allocated a new social worker. She assessed Mr D on 12 July 2022.
31. The assessment found that Mr D had eligible needs in the areas of personal hygiene, managing toileting, relationships and accessing work or education. The assessment said Mr D wanted to attend a day centre to help his anxiety, and was interested in a personal assistant, supported living and respite.
32. The social worker contacted the day centre which agreed Mr D could attend three days a week. The care and support plan was sent to the day centre, but I have seen no evidence it or the assessment was sent to Mr D.
33. Mr D asked the Council for a copy of his care and support plan in August. Once he received it, he considered it did not properly reflect his needs. Nor did it set out that he required a personal assistant, carers and respite. Mr D requested a new assessment and an advocate on 12 August. The Council transferred Mr D’s case to its community team.
34. Mr D started to attend the day centre, which he found helpful. He also started a university course and arranged his own carers to provide emotional support and support with personal care. Mr D says this was because his financial assessment had found he did not have to contribute to the cost of his care and he was expecting the Council to put the carers in place (or provide direct payments) following the reassessment.

Second care and support assessment, October 2022

35. Mr D chased the Council a number of times during September awaiting the reassessment. The Council has apologised for the delay.
36. A new social worker and a colleague visited Mr D on 18 October to assess his care and support needs. Mr D’s advocate was also present.
37. Mr D says the social worker asked to see the continence pad he was wearing and called his mother (who he lived with but who was not involved in his care) into the room and asked her about Mr D’s personal care without his consent. Mr D found this conduct highly inappropriate and distressing.

Mr D’s complaint, October 2022

38. Mr D called the Council to complain about the social worker’s conduct and the assessment. He also contacted Social Work England. Mr D asked to do a supported self-assessment, with the help of his advocate. The Council agreed to this.
39. The Council replied to Mr D’s complaint on 7 November 2022. It did not uphold his complaint about the first assessment, apologised for the delay in carrying out the reassessment and partially upheld his complaint that it had not been completed correctly. Mr D’s case was allocated to a new worker, who was an assistant care manager.

November to December 2022

40. The assistant care manager met with Mr D and his advocate on 15 November and as a result updated the assessment that had been done in October. The Council sent Mr D the care and support assessment on 2 December. This said he had eligible needs and would attend the day centre two days a week. Mr D says the plan and assessment are wrong as they say he receives support from family, but he does not.
41. Mr D cancelled his privately arranged carers as he could no longer afford them and they were not providing the support he needed. He then found a personal assistant privately who started to support him in the new year. Mr D asked the Council if the cost of the carers could be reimbursed.

Third care and support assessment, January 2023

42. Mr D sent the Council some further amendments to his assessment on 23 January 2023 and it was updated by the assistant care manager. The care and support plan was completed on 1 February 2023. It says Mr D should attend the day centre three days a week. There is no record that the plan was sent to Mr D.
43. A final complaint response was sent on 7 February 2023. The Council apologised that Mr D’s case had been closed in June 2022. The October 2022 social worker had denied the allegations but the Council had allocated his case to a new worker and had shared his assessment with him.
44. Mr D came to the Ombudsman. He said the assessments were not person-centred and had not accurately reflected his needs, nor had he been given any chance to appeal them. As a result he felt abused and neglected by the Council, causing him to distrust it. His care needs had not been met so his mental and physical health had deteriorated and he had no money left.

Events since coming to the Ombudsman

45. The Council met with Mr D on 1 March and 4 April 2023 to discuss his request for reimbursement and his care and support needs. On 6 April it emailed him to say that it now considered he did not have eligible needs and his attendance at the day centre would be ended in a planned way.
46. The Council said it had carried out a desktop review of the previous assessments and had considered Mr D’s strengths and abilities following information from the day centre that Mr D was too independent for the service. An updated assessment was completed on 3 May 2023. This says Mr D does not need support to achieve any of the outcomes specified in the Care Act. He therefore does not have eligible needs. In response to my draft decision, the day centre manager said she had not advised the Council Mr D was too independent for the service.

My findings

47. The Council has accepted that it wrongly closed Mr D’s case in June 2022 and there was a delay from August to October 2022 in his reassessment. In response to my draft decision, the Council noted that Mr D had asked for a reassessment as he wanted the assessment to reflect his worst day, which was not in line with the strength-based approach set out in the Guidance. But I note that the Guidance says councils should consider whether a person’s needs may fluctuate and should “take into account the adult’s history to get a complete picture of the person’s needs.” (Care & Support Guidance, paras 6.42c & 6.58)
48. The Council has already apologised for the delays, but I consider the uncertainty caused is particularly distressing for Mr D as he has autism and anxiety. Our remedies guidance says moderate, symbolic payments may be made if a person has been caused distress and uncertainty by fault. My view is this is appropriate in Mr D’s case.
49. I have seen no evidence that the Council sent Mr D the care and support assessment or plan in July 2022 or February 2023. This is fault which delayed Mr D’s opportunity to challenge the plans and meant the Council failed to agree them with him, adding to his distress. Mr D considers that the fact that he was unable to appeal the assessment and plan means they are not valid. But the Council carried out reassessments, which is an appropriate response to his disagreement with the plans.
50. In relation to the social worker’s conduct in October 2022. Our role is to look into the Council’s actions as a corporate body, rather than to investigate an individual and any disciplinary actions between the Council and its employees are outside our jurisdiction. I note that the social worker has refuted the allegations. I understand Mr D has reported his concerns about the social worker to the professional body, Social Work England. My view is they are better placed to consider this complaint. I am therefore exercising my discretion (set out in paragraph 6 above) not to investigate what happened.
51. Mr D complains that he has not been provided with the support he needs because the assessments that have taken place are not person-centred, do not properly reflect his needs and contain errors.
52. 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, and if it took account of the service user’s wishes.
53. If a council considers all this information properly, I cannot find a council at fault just because a service user disagrees with its decision, or outcome of an assessment. I have therefore reviewed how the Council assessed Mr D.

July 2022 assessment

54. The assessor met Mr D, the assessment is detailed and describes Mr D’s needs and wishes. It refers to Mr D’s contacts with mental health services and the GP. There is no evidence of fault in the way the assessment was carried out. I therefore cannot challenge the Council’s conclusion that Mr D required support at a day centre but did not require a personal assistant, personal carers or respite.
55. I appreciate Mr D disagrees with this decision, but it is one the Council is entitled to make as the courts have confirmed that an individual’s wishes are not the same as their eligible needs and without any fault in the way the decision was made, I cannot challenge it.

October 2022 assessment

56. I have reviewed the assessment, which was updated after Mr D’s meeting with the assistant care manager on 15 November. Mr D says it does not take into account his wishes, it sets out what his wishes are so I consider they were taken into account. This does not mean the Council has a duty to meet Mr D’s wishes. I find no fault in the assessment. I therefore cannot challenge the Council’s decision that Mr D required support at a day centre and not a personal assistant, personal carers or respite.
57. I understand Mr D is concerned about the social worker’s conduct during the assessment meeting but I make no finding on that. If Social Work England find the social worker was not fit to practise, Mr D can come back to us to consider whether there is any injustice that needs to be remedied.

January 2023 assessment

58. I have seen no evidence of fault in the way this was produced following Mr D’s update to the Council on 23 January 2022. It describes Mr D’s needs and includes the comments he made.
59. Mr D says it was wrong for the assistant care manager to update the assessment in November 2022 and review it in January 2023 as he is not a social worker and did not advise him he was not a social worker. The Care Act and Guidance do not require the assessor to be a qualified social worker. In response to my enquiries the Council explained that the assistant care manager was trained and competent. There was therefore no fault in him assessing Mr D.
60. Mr D does not feel that support at the day centre is sufficient to meet his needs. It was the Council officers’ professional judgment based on his eligible care needs that the day centre was sufficient. Without evidence of fault, I cannot ask the Council to disregard its officers’ judgment simply because Mr D does not agree.
61. This means I cannot ask the Council to reimburse the cost of the carers Mr D employed as this was not care the Council was required to provide to meet Mr D’s eligible care needs.

May 2023 assessment

62. Since Mr D’s complaint to the Ombudsman, the Council has decided he does not have eligible needs following a desktop review.
63. I find it was fault not to have reviewed Mr D’s needs in person. There have been three previous assessments that found he had eligible needs. I have seen no evidence his needs have changed, nor that there was a change in circumstances. Nor have I seen evidence that the Council consulted with a person with expertise in autism in making its decision. This causes injustice to Mr D as he cannot be sure the Council has properly assessed his needs.
64. As Mr D is in dispute with the Council’s decision, my view is the Council needs to go back to earlier elements of the care planning process. It should ask a qualified social worker trained in autism to review Mr D’s care and support needs in person. It may wish to consider whether a social worker from another local authority would be best placed, given the mistrust that Mr D has for the Council.

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Agreed action

65. The Council has agreed to:
1. Pay Mr D £300 to remedy the distress and uncertainty caused by delay in assessing him and not sending him the assessments and plans, within a month of this decision.
2. Carry out an in-person review of Mr D’s care and support needs, using a qualified social worker trained in autism. This assessment should take place as soon as possible once any ongoing mental health clinical assessments have concluded.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman