Summary: Mr D complained the Council delayed completing an assessment of his care needs and it delayed putting necessary support in place. He also says the Council initially refused to allow him to have an advocate and it refused to properly deal with his complaints. We find the Council was at fault for its delay in sending Mr D a copy of his assessment. There was also some fault with how it dealt with the concerns Mr D raised about its service. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr D complained the Council delayed completing an assessment of his care needs and it delayed putting necessary support in place. He also says the Council initially refused to allow him to have an advocate. Finally, he says the Council refused to properly deal with his complaints.
2. Mr D says he has suffered from anxiety, stress and depression because of the Council’s failings. He also says he had to pay for his own care.

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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 considered information from Mr D. I made written enquiries of the Council and considered information it sent in response.
7. 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 legislation and guidance

8. 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. Following their assessment, individuals must be given a record of their needs.
9. Where the council judges that the person may benefit from such types of support, it should take steps to support the person to access those services. The council may ‘pause’ the assessment process to allow time for the benefits of such activities to be realised, so that the final assessment of need (and determination of eligibility) is based on the remaining needs which have not been met through such interventions. For example, if the council believes that a person may benefit from a short-term reablement service which is available locally, it may put that in place and complete the assessment following the provision of that service.
10. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
11. The care and support statutory guidance sets out the role of advocates in the assessment and support planning process. It says at the point of first contact, councils must form a judgement about whether a person has substantial difficulty in being involved with these processes. If it is thought that they do, and that there is no appropriate individual to support and represent them for the purpose of facilitating their involvement, then the council must arrange for an independent advocate to support and represent the person.

What happened

12. This chronology provides an overview of key events in this case and does not detail everything that happened.
13. Mr D approached the Council in January 2022 for support. His ex-partner had been providing with him some limited care, but it was not a formal arrangement.
14. The Council telephoned Mr D at the beginning of February to complete a reablement assessment. Reablement is a type of care that helps people relearn how to do daily activities. Mr D said he did not want reablement care and he wanted a private carer to be paid through direct payments.
15. The Council assigned a social worker to Mr D’s case to carry out an assessment under the Care Act 2014.
16. Mr D complained to the Council over the telephone on 22 February. He said he was unhappy the social worker had cancelled his appointment. The officer he spoke to said she would send his concerns to the relevant department, but she would not register it as a formal complaint. She said she would register his concerns formally if he was not happy with this.
17. The social worker visited Mr D two days later. She agreed to complete occupational therapy and physiotherapy referrals to see if Mr D could get help with his bathing needs and mobility. She said this input was essential to conduct a thorough and fair assessment. She also noted some of Mr D’s other needs could be met by his GP or through his enhanced benefits payments. She said she would be in contact when the other professionals had assessed him.
18. The social worker sent the referrals at the end of March.
19. Mr D contacted the Council at the beginning of April. He said he felt it should have given him a care package after the social worker’s visit. The officer he spoke to said they would discuss his concerns with the duty manager.
20. The occupational therapist completed their assessment and recommended a reablement care package to support Mr D. This consisted of two calls per day to help with personal care support and meal preparation. She explained reablement care is for a short time and carers work alongside social workers to ascertain future long-term care needs to potentially set up a direct payments package. She also recommended further physiotherapy input to advise on Mr D’s mobility issues.
21. Mr D declined reablement care as said he wanted to choose who his carers were. The case notes also state Mr D declined further physiotherapy intervention. Mr D disputes this.
22. Mr D contacted his councillor in June about the Council’s failure to provide him with a care package. The Council called Mr D to discuss his concerns. It said reablement care was available for him. Mr D said he was not happy with reablement care, and he wanted a new social worker. He also said he had previously made a formal complaint. The Council told Mr D it had no record of a formal complaint from him.
23. An officer from the Council’s complaints department emailed Mr D and explained the process if he wanted to make a formal complaint.
24. Mr D sent several emails to his councillor in July and continued to raise concerns about the Council.
25. The Council contacted Mr D and said it would investigate his concerns. It told him to stop contacting the councillor as it was dealing with the matter.
26. The Council responded to Mr D’s complaint the following month. It said he had refused reablement support, but if he had changed his mind he should contact it.
27. Mr D’s representative contacted the Council in August. She said Mr D wanted choice on how his care needs were met and he did not feel comfortable with strangers supporting him with his personal care needs. Direct payments would give him the choice of choosing who his carers were. She also said the Council had not provided him with a written copy of his assessment from February. She said the Council failed to provide Mr D with the choice of having an independent advocate during the assessment process. Finally, she asked for the Council to provide interim care pending the completion of a new assessment.
28. Mr D received a copy of his assessment from February in September after he made a subject access request to the Council. His representative emailed the Council and pointed out mistakes within the assessment. She also said it failed to ask him whether he had any communication difficulties. She said Mr D has speech and language difficulties and memory issues.
29. The Council considered the request from Mr D’s representative. It decided to assign a social worker in September to complete a reassessment of Mr D’s needs. The social worker sent a referral to an advocacy agency for an independent advocate to support Mr D in his assessment. The agency rejected the referral as it said Mr D did not meet the criteria. Mr D said the social worker’s visit should not go ahead due to the lack of an advocate.
30. The social worker made a further referral for an advocate. The agency responded and said the form stated Mr D did not have substantial difficulty engaging with the process. It said it could not accept a referral unless Mr D met the statutory requirements.
31. The social worker called Mr D and said she was coming to assess him without an advocate as he was not eligible for advocacy. Mr D said he needed an advocate because of his cognitive impairment and memory issues.
32. Mr D’s representative complained later that day. She said the Council completed a referral to the agency without contacting Mr D to understand his needs.
33. The social worker made a further referral for Mr D to receive advocacy support. The agency reviewed the referral and decided Mr D was eligible for an advocate. The agency assigned an advocate to Mr D’s case.
34. The social worker contacted Mr D and said it would visit him to complete a reassessment of his needs. Mr D’s representative emailed the Council and asked whether it would re-assign the case to another social worker after the complaint. The Council decided to cancel the social worker’s visit because of this contact.
35. Due to the ongoing issues, the Council decided to provide Mr D with an interim care package of three calls per day through direct payments. This started in January 2023. The Council said it would complete a full assessment of Mr D’s needs within six weeks of the direct payments package.

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Analysis

36. It is not the Ombudsman’s role to decide what, if any, care and support a person needs. That is the Council’s role. The Ombudsman’s role is to consider if the Council has followed the correct process in assessing a person’s needs.
37. In Mr D’s case, the Council visited him and decided he needed further input from the occupational therapist and physiotherapist. The occupational therapist’s professional judgement was reablement care was suitable for him. She explained this was short term and it would help determine his future long-term care needs. This support was available for Mr D, but he decided it was unsuitable for him. While Mr D was unhappy with the outcome, I have seen no fault with the way the occupational therapist considered his needs.
38. The Council delayed sending Mr D a copy of his assessment from February 2022. He only received this seven months later after he made a subject access request. This is fault. There was no further involvement from any professionals after April 2022 and so the Council should have completed the assessment and sent it to Mr D much sooner. It would have given him the opportunity to correct and challenge the statements made. Mr D raised many issues with the assessment when he eventually received it, especially the social worker’s view of whether he could meet his nutritional and personal care needs. This suggests the social worker may have misunderstood Mr D’s needs. I cannot say with any certainty whether Mr D would have received care and support sooner if the social worker had shared the assessment, or if the outcome would have been any different. However, the Council’s fault leaves Mr D with a significant level of uncertainty over his care and support needs.
39. The social worker also did not contact Mr D after he declined reablement care in April 2022 to explore if there were any other options available to him. This is fault which caused Mr D frustration. The next time Mr D heard from the Council about his care was from a manager in June 2022.
40. The care and support statutory guidance states councils must form a judgement about whether a person has substantial difficulty in being involved with the assessment process. The assessment from February 2022 states Mr D had no communication difficulties and no difficulties retaining information. Mr D says the social worker did not ask him these questions. I do not have a recording of the meeting, and so I cannot make a finding on whether the social worker appropriately asked Mr D these questions or not.
41. The second social worker made a referral to the advocacy service without contacting Mr D. This is fault. She was relying on the information from the previous social worker, rather than contacting Mr D directly to understand what his communication difficulties were. This caused Mr D frustration and left him with the feeling the Council was not properly engaging him in the process.
42. However, when the social worker made the second referral, she had spoken to Mr D and considered the medical documents. She went through the relevant criteria from the care and support statutory guidance. It was her professional judgement Mr D could express himself verbally and in writing and he could express opposing views. Therefore, while she made the referral in line with Mr D’s wishes, she did not consider there was sufficient evidence to support the need for an advocate. That was a decision she was entitled to take.
43. Mr D raised informal concerns with the Council in February 2022. The advisor said she would refer the matter to the relevant department. I have seen no evidence anyone contacted Mr D to discuss his issues further. Mr D raised further concerns with the Council over the telephone in April 2022. The case note of this telephone call states the advisor would discuss his issues with a duty manager. There is no evidence the Council followed this up, which caused Mr D frustration. However, when Mr D contacted his councillor in June 2022, the Council acted promptly by calling him to discuss his issues. It also sent him an email with its complaints procedure, and then it subsequently responded to his formal complaint.
44. Mr D says the Council sent him a letter and told him not to contact it again. Mr D was raising his concerns about the Council’s service with his councillor. The councillor sent the emails to the Council and said she was not involved in the matter and could not provide further help. The Council told Mr D to stop emailing the councillor as it would deal with his complaints through its complaints procedure. I find no fault with this approach as the correct process for Mr D’s concerns to be addressed was the Council’s complaints procedure.

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Agreed action

45. To address the injustice caused by fault, by 22 September 2023 the Council has agreed to:

• Apologise to Mr D for his uncertainty and frustration.
• Pay Mr D £250.

46. By 20 October 2023 the Council will:

• Issue written reminders to relevant staff to ensure they are aware they should provide assessments under the Care Act 2014 to customers and their relatives without unnecessary delay.

47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. There was fault by the Council, which caused Mr D an injustice. The Council has accepted my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman