Summary: There was fault in the way the Council decided to reduce Mrs B’s care package. The Council failed to properly consult with Mrs B or with the care agency that provided the care and failed to properly consider Mrs B’s needs. The Council has agreed to apologise, pay a small financial remedy and carry out a review of the care plan.

The complaint

1. Mrs B complains about the Council’s decision to reduce her care package. She says:
• The Council made the decision without consulting her or her care provider.
• She was given conflicting information about the reasons for the reduction.
• The revised care plan does not meet her needs anymore.

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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. 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)
3. 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

4. I have discussed the complaint with Mrs B. I have considered the documents that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

5. The Care Act 2014 and the Care and Support Statutory Guidance 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
6. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.
7. The care 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. When preparing a care and support plan the council must involve any carer the adult has.
8. The threshold for eligibility is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how these impact on their wellbeing. Council must consider whether:
• The adult’s needs arise from a physical or mental impairment or illness.
• As a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes.
• As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
9. Outcomes
10. The outcomes are:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Being able to make use of the home safely
• Maintaining a habitable home environment
• Developing and maintaining family or other personal relationships
• Accessing and engaging in work, training, education or
• Making use of necessary facilities or services in the local community
• Carrying out caring responsibilities for a child.
11. The Guidance says:
• Prevention and early intervention are placed at the heart of the care and support system. This must include looking at the impact of the adult’s needs on their wellbeing and whether meeting these needs will help the adult achieve their desired outcomes. 
• The plan must detail the needs to be met and how the needs will be met and will link back to the outcomes that the adult wishes to achieve in day-to-day life as identified in the assessment process and to the wellbeing principle in the Act. This should reflect the individual’s wishes, their needs and aspirations, and what is important to and for them, where this is reasonable.
• Consideration of the needs to be met should take a holistic approach that covers aspects such as the person’s wishes and aspirations in their daily and community life, rather than a narrow view purely designed to meet personal care needs.

Reviews of the care plan

12. Councils should review plans every 12 months.
13. The review process should be person-centred. The process must involve the person needing care and also the carer where feasible.
14. In all instances, the method of review should, wherever reasonably possible, be agreed with the person and must involve the adult to whom the plan relates, any carer the adult has and any person the adult asks the authority to involve.

Needs met by other services

15. Local authorities must not meet needs by providing or arranging any health service or facility which is required to be provided by the NHS.
16. There may also be other services which a person is entitled to under other legislation. The Guidance says the duty to meet eligible needs is not discharged just because a person has another entitlement to a different service which could meet those needs, but of which they are not availing themselves. The needs remain ‘unmet’ (and so the local authority remains under a duty to meet them) until those needs are actually met by the relevant service bring provided or arranged. Local authorities should therefore consider how to inform and advise people on accessing any such entitlements at the earliest stage possible, as well as working collaboratively with other local services to share information.

What happened

17. Mrs B is a 92-year-old woman who has a need for care and support.

Care plan - 2018

18. The Council set up a package of care in January 2018 after Mrs B was discharged from hospital with an ongoing spine fracture.
19. The social worker noted that Mrs B needed assistance to get from lying to sitting at the edge of her bed. Mrs B was able to walk for 8 metres with her 4 wheeled walker but was at high risk of falls.
20. Mrs B lived with her adult son who provided most of the support but who also had his own needs for support. The social worker noted that Mr B provided support in making the meals and Mrs B was independent in taking medication.
21. Mrs B’s care plan from 2018 said care workers should assist Mrs B with the following:
• Personal hygiene and care such as washing and getting ready in the morning and evening.
• Being appropriately clothed by helping her to dress and undress.
• Managing toileting needs by emptying the commode.
• Being able to use the home safely by ensuring that all access was free of trip hazards. The care workers also assisted Mrs B to walk as she was unable to do so safely without assistance.
• Maintaining a habitable environment by assisting her with sorting out clean clothes and maintaining hygiene areas where necessary.
22. The care calls were set up as follows:
• Am – 1 hour. The hour included ‘walking her up and down the corridor.’
• Pm – 30 minutes.

Review of care plan – 1 October 2020

23. The social worker carried out a review of Mrs B’s needs on 1 October 2020. She noted that the support both in the morning and the afternoon included walking up and down the hallway for exercise. There was no change in Mrs B’s needs and no change in the care plan.

Review of care plan – 16 September 2022

24. The social worker carried out a review of Mrs B’s needs on 16 September 2022.
25. The social worker sent an email to the manager of the agency that provided Mrs B’s care and said she was carrying out a review. She wanted to know what support Mrs B provided, whether the care was working and whether there were any concerns.
26. The manager confirmed the support that the agency provided. The care workers assisted Mrs B in washing, emptying the commode, getting Mrs B dressed and undressed, changing the bedding, making the bed and light household talks such as clearing up and assisting Mrs B in walking up and down the corridor. Mrs B would prefer to walk outside the front of the house, but she was unable to leave the house.
27. The social worker said the following in the re-assessment:
• ‘Current care package in place. Twice daily care calls for 45 minutes in the morning and 30 minutes each afternoon.’
28. The social worker noted the following under the heading - Mrs B’s ‘wellbeing outcomes’:
• Mrs B’s needs were to ‘walk with a carer up and down outside my home. To allow for exercise and to have the freedom to leave the house.’
29. The social worker concluded:
• ‘[Mrs B] continued to need formal support twice daily to meet eligible needs.
• Am call 45 minutes to support with personal care, toileting, dressing and walking up and down the corridor.’
• Evening 30 minutes to support with toileting, walking up and down the corridor. Both calls to provide social stimulation.’
30. The note of the visit on 16 September 2022 said:
• ‘For the purpose of completing review. No change in need.’
31. On 21 September 2022, a Council worker in the Brokerage team emailed the social worker. He questioned the care plan as it said there had been ‘no change in package’. However, there had been a change as the current support plan included a 1-hour call in the morning. The officer asked: ‘Please advise and we will action.'
32. The social worker sent an email to her supervisor and said:
• ‘I feel 45 minutes will be a suitable amount of time as the son makes the breakfast and there is no medication to take. It is purely for personal care, toileting and dressing as eligible needs. Do you agree?
33. The senior social worker replied and said: ‘Yes please go ahead with reduction to 45 minutes.’
34. The manager of the care agency emailed the social worker on 23 September 2022. She said she had just spoken to Mrs B and Mrs B was very upset and in tears about the reduction in the morning calls. The manager said she could not comment on why the reduction was made and asked the social worker to call Mrs B to explain it.
35. The social worker replied and said that the 45 minutes care call in the morning met Mrs B’s needs in terms of personal care, toileting and dressing. Walking for exercise was not an eligible care need and Mrs B would need to discuss this with her GP for a referral for physiotherapy if ‘she felt strongly that she needed to walk’.

Complaint - October 2022

36. Mrs B complained on 3 October 2022 and said:
• The social worker visited her on 16 September 2022.
• She did not find out that her care package had been cut until Friday 23 September 2022 when she saw the revised rota. She was very surprised and stressed by the discovery.
• She rang the manager of the care agency who was also surprised. The manager did not know of the change or why the change was made.
• She rang the social worker and was told the social worker would ring her, but she never contacted her. The social worker refused to speak to her and, every time she rang, she was told the social worker’s decision was final.
• She was 92 years old, disabled and housebound. She spent 12 hours in bed and 12 hours sitting in a chair. She could not mobilise without help. Her support from social services was minimal and included ‘no frivolities’.
• The reduction in her support had left her stressed and deprived her of her peace of mind and wellbeing. She had lost her confidence.
37. The social worker spoke to Mrs B on 5 October 2022 and explained the reasons for the reduction in the care package.
38. Mrs B sent a further letter on 20 October 2022 and said:
• ‘The social worker was adamant in her decision to cut my morning call …despite all my efforts to explain my needs.’
• The social worker told her her son could do more to help her.
• She had been given conflicting reasons why the package was reduced. She was told:
1. The reduction in the car plan was done in consultation with the care agency.
2. Walking had never been included in her care plan.
3. Social services never assisted people in walking.
39. She disputed all these reasons.

Complaint – November 2022

40. Mrs B sent a further letter on 1 November 2022 as she questioned the Council’s position that assistance in walking was not an eligible care need.
41. She attached copies of her care plan which set out all the tasks the agency care workers did during the morning call. These tasks included, in addition to assisting Mrs B in having a wash, getting dressed and toileting, the following tasks:
• Change her night clothes and put the dirty washing in the storeroom.
• Assist her in walking.
• Make a cup of tea.
• Put a cup of water on her trolley.
• Make her bed every day.
• Change her bedding once week.
• Do some ironing if there is time.

Council’s reply – 25 November 2022

42. The Council replied and said it could not reverse the social worker’s decision for the following reasons:
• The review took into consideration Mrs B’s views, strengths, abilities and support network as well as the views of the care staff who had been supporting her.
• The social worker applied the eligibility criteria under the Care Act.
• The Council assessed people with a ‘strength-based focus’ and the care plan met Mrs B’s needs. Funding was only given to meet essential needs and, where possible, community or social networks should support the person to be as independent as possible.
• ‘The review that was carried out explored these options with you and whilst I understand that this is concerning to you, you are still able to purchase support privately from the current agency to support in the area that you are asking.’

Further information

43. I asked the Council to send me the most recent needs assessment and care plan before the care plan of September 2022. The Council send me the documents from 2018, when the care package was initially set up.
44. I asked the Council why it did not consider assistance and supervision in walking an eligible need.
45. The Council said:
• ‘Where a customer has difficulties with mobility that requires an intervention, our view is that this is a health need.’ Therefore, Mrs B should obtain support from her GP or physiotherapist. The Council referred to the 10 outcomes and said these did ‘not reference any part of walking, as a specified outcome with reference to the needs identified for [Mrs B]’. They would fund support for a customer to support with ‘basic actions such as immediate transfers that supports the customers independence to undertake an activity of daily living in the home’.
46. I asked the Council to explain why it had reduced the care plan as Mrs B’s needs had not changed and she had received the same care package for many years.
47. The Council said:
• There had been ‘some misunderstanding as prior to the review/reassessment, the previous provider only provided no less the 30-minute or part hour support calls.’ The Council decided to commission the provider until another provider who was able to provide part hour calls, became available. So, there was over-provision in the call and Mrs B used this to walk, but this walking did not meet an eligible need.

Analysis

48. It is not the role of the Ombudsman to carry out an assessment of needs or to write the care plan. I have investigated whether the Council has properly considered and applied the relevant law, guidance and policies when it carried out the review of Mrs B’s care plan.
49. The Care Act and the Guidance stress the importance of putting a person’s needs and wishes at the centre of the care planning. If the Council is planning a change, particularly a reduction of support, it is even more vital that the person is consulted and given a chance to explain what their needs are, what outcomes they want to achieve and how this will affect their wellbeing. The plan should be agreed with the person before it is finalised.
50. I uphold Mrs B’s complaint that she was not consulted when the Council reviewed her care plan.
51. It is clear from the documents that the social worker did not inform Mrs B during the assessment that she was planning to reduce the care package. It appears to me that the social worker did not realise at the time that she was reducing the care package as she had, incorrectly, assumed that the morning care call was 45 minutes so she thought the care plan remained unchanged.
52. It was only when the Brokerage team noticed the error that the social worker realised that she was making a reduction to the care package. At this stage, the social worker should have consulted with Mrs B and the care agency to explore further what support Mrs B was receiving and find out what their views were and what the impact would be of the reduction. Instead, she obtained the approval for the reduction in the care package from a senior officer and made the decision to reduce the package without any further consultation with Mrs B. That was fault.
53. I also uphold the complaint that the care agency was not consulted about the reduction in the care package as the agency’s manager was as surprised as Mrs B was when she found out about the reduction. This was further fault.
54. I have also considered the way the Council decided that support in walking was not an eligible need.
55. Firstly, I note that, in the assessment dated 16 September 2022, the social worker repeatedly stated that the assistance in walking was an eligible need. The assessment’s conclusion said:
• ‘[Mrs B] continues to need formal support twice daily to meet eligible needs. AM call 45 minutes to support with personal care, toileting, dressing and walking up and down the corridor.’
56. So, it appears that, during the assessment, the social worker agreed that providing assistance to walk was an eligible need, but she mistakenly thought that these eligible needs could be met in 45 minutes.
57. It was only in her email to the supervisor dated 21 September that the social worker stated that there were only three needs that had to be met during the morning call which were personal care, toileting and dressing. In that email she omitted any reference to walking or to the other household tasks that the care agency was providing support in.
58. The Guidance says local authorities should: ‘take a holistic approach that covers aspects such as the person’s wishes and aspirations in their daily and community life, rather than a narrow view purely designed to meet personal care needs.’ So there was certainly nothing to prevent the Council to include walking as an eligible need and to support Mrs B to ‘make use of her house safely’ for walking as exercise or indeed to access the outside (if she was able to go outside). There was no evidence the Council considered Mrs B’s wishes and aspirations when it decided to cut the provision.
59. In its complaint response to Mrs B of 25 November 2022, the Council did not actually say whether it considered walking an eligible need or not or why. It said funding was given to meet eligible needs and it would seek community or social networks to support the person ‘to be as independent as possible’. This suggested that the Council did not include walking in the care plan as there was a resource in the community that could meet it.
60. The Council did not say what this resource was except to suggest that Mrs B should pay the care agency privately.
61. If the need was eligible, then Mrs B should not be expected to pay privately. And if there was a resource that could meet the need in the community, then the Council still had to meet the need, until that resource was found. The Guidance is clear that needs remain ‘unmet’ (and so the local authority remains under a duty to meet them) until those needs are actually met by the relevant service.
62. In its response to the Ombudsman, the Council then said Mrs B’s assistance in walking had to be met by the NHS and this was why it did not include it in the care plan. I question the Council’s decision that Mrs B’s request to walk was ‘difficulties with mobility that requires an intervention’ and was therefore a health need. It is true that the NHS sometimes offers physiotherapy, to ‘help to restore movement and function when someone is affected by injury, illness or disability’. But Mrs B was not receiving physiotherapy and had not been offered any physiotherapy. And, if this was the Council’s position, it should have informed Mrs B in 2018 so that the necessary NHS referral could have been made.
63. There was also fault in the Council’s complaint response letter dated 25 November 2022 which said Mrs B’s views and the care agency’s views had been considered when the decision was made to cut the care package. This was not the case as I have already explained.
64. I also note that there had not been a review of Mr B’s needs since October 2020, but I cannot say whether Mrs B suffered any injustice as a result of this.

Injustice

65. I spoke to Mrs B about the effect of the reduction in support. She said she felt the Council had never listened to her. She said the impact of the reduction in support had been devastating. She said the assistance in walking was vital to her as she spent her entire day either in bed or in her chair. She said that, even before the reduction, the care workers often needed the full hour to provide all the support that she needed. She did not always have a walk even when the call was one hour. Now that the call had been reduced, the care workers had to rush and were sometimes unable to finish the tasks.

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Agreed action

66. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Mrs B for the fault.
• Pay Mrs B £300 for the distress resulting from the fault.
• Carry out a review of Mrs B’s needs assessment and care plan. When carrying out the assessment, the Council should involve Mrs B and the care agency. The Council should check with the agency what support is being provided and how long it takes to provide the support and take this into consideration in its decision making.

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Final decision

67. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman