Summary: The Council failed to act in accordance with the law during assessments/reviews of Ms Y’s care needs from 2020 onwards. It also failed to ensure an adequate personal budget was in place which resulted in the breakdown of an established care package. The Council also failed to communicate effectively with Ms Y’s representative.

The complaint

1. Mr X complains about the way the Council dealt with his daughter, Ms Y’s care.
2. He also complains about the way the Council communicated with him and dealt with his complaint about the above.

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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. 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

5. I have:
• considered the complaint and discussed it with Mr X;
• considered the correspondence between Mr X and the Council, including the Council’s response to his complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mr X and the Council the opportunity to comment on a draft of this document and considered the comments made.

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What I found

6. Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person’s finances.
7. The statutory guidance at part 6 says a council must consider “the total extent of a person’s needs” before it “considers the person’s eligibility for care and support and what types of care and support can help to meet those needs. This must include looking at the impact of the adult’s needs on their wellbeing and whether meeting those needs will help the adult achieve their desired outcomes”.
8. After assessing the total extent of a person’s needs, the council should consider which are eligible needs under the Care Act 2014. The guidance says councils must consider whether:
• The adult’s needs are due to a physical or mental impairment or illness.
• The adult’s needs mean they cannot achieve one or more specified outcomes.
• As a consequence of being unable to achieve one or more of the specified outcomes there is, or is likely to be, a significant impact on the adult’s wellbeing.
9. The Act gives local authorities a legal responsibility to provide a care and support plan. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
10. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
11. The personal budget must always be an amount enough to meet the person’s eligible care and support needs. It can be administered by the council, by a third party, or as a direct payment.

Key facts

12. This report is not an exhaustive description of all the events that have occurred in relation to this complaint, but an outline of the key issues as a background to the investigation’s findings.
13. Ms Y is in her thirties. She has a learning disability, physical disability, epilepsy, and a memory impairment. She lives in her own home with 24-hour care from regular carers. This arrangement has been in place for over twenty years.
14. Ms Y is reported to have a close relationship with her parents Mr & Mrs X, with Mr X providing significant support, including managing Ms Y’s direct payment.
15. Mr X says Ms Y has limited ability to weigh up information and come to an informed decision. He says she has stock phrases which give the impression she is more able than she is.
16. As part of this investigation the Council provided me with copies of Ms Y’s needs assessments and reviews completed in 2018, 2020, 2021, 2022 and an occupational therapy (OT) assessment completed during this investigation, (April 2023).
17. A needs assessment completed in 2018 records Ms Y to have complex needs and require 24-hour care. A sufficient personal budget was allocated, and Ms Y continued to receive 24-hour care.
18. The Council did not review Ms Y’s care between 2018 and June 2020.
19. A telephone review was conducted on 6 June 2020. Because of the pandemic the allocated social worker believed a face-to-face visit not to be essential. She recorded “In my professional view, the current care arrangements for [Ms Y] are working well. She appears to have gained some more independence since the previous review in 2017”. While completing this review I considered the possibility that [Ms Y] perhaps does not need 24/7 care and may well be able to spend several hours a day alone. However, she has never lived alone and therefore, a change to her current care arrangements could have a major impact on her mental, emotional and physical wellbeing for the long term. I still have only a limited impression of her abilities and disability and therefore, in my professional view, this was not the right time to make such a decision. My recommendation is that this will be considered further at the next face to face review. Any changes to her care arrangements would have to be made very gradually”.
20. The social worker visited Ms Y at home on 21 July 20. She also reported having had numerous telephone and video calls with Ms Y over a period of two months. She reported Ms Y to be keen to increase her independence and cited the example that Ms Y had expressed an interest in being more involved in cooking.
21. The assessor later recorded that Ms Y had undergone a number of brain scans “...which show that there are impairments to the brain which affect her cognition and attention span. This also means that [Ms Y] finds it difficult to make choices and to reason. Because of these difficulties [Ms Y] is not always able to comprehend the outcomes of her actions and may do something which could be detrimental to her physical and emotional well-being”.
22. A care and support plan completed in August 2020 shows Ms Y continued to receive a direct payment to fund 24-hour care.
23. In February 2021 Mr X informed the Council that the charges for Ms Y’s care were increasing. He says despite sending several emails he did not receive a response, so he loaned money from his personal funds to keep the direct debit account in credit.
24. The records show the Council amended Ms Y’s review document again in September 2021. Mr X says neither he nor the carer were consulted. The assessor reported no change in Ms Y’s needs but recorded her view, that, “Based on the information gathered during the review it is believed that [Ms Y] does not need 24 hours support. She can be left on her own for a few hours. She shared that she is unstable on her feet and cannot stand for more than 4 minutes, and therefore she is likely to fall if support is not available. And she shared that she has had a few falls at home”.
25. Mr X says he was not aware of any reviews of Ms Y’s care throughout the whole of 2021.
26. On 8 October 2021, Mr X requested a change in social worker, citing a breakdown of trust because the social worker alleged he was not answering her calls or responding to voice mails. Mr X refuted this. The Council agreed to Mr X’s request and a different social worker was allocated.
27. The newly allocated social worker contacted Mr X on 26 October 2021 to introduce herself. Emails exchanged between the social worker and Mr X show a mutual agreement to review Ms Y’s needs on 19 January 2022.
28. Mr X says the meeting did not go well. The social worker did not seek any information about Ms Y’s overnight care needs. The review document records the social worker’s view that “…[Ms Y] does not have an evidenced need for night support and therefore a continuation of 24/7 care and support would be an overprovision and not reflective of [Ms Y’s] evidential needs for care and support nor reflective of wishes and aspirations to expand upon her independence in the future”.
29. Mr X says the social worker contacted him at the end of June 2022, to say Ms Y’s overnight care could not be justified and that it never had been. Mr X challenged the social worker on numerous occasions, he says the social worker responded with false statements to support her position and spoke to him in a derogatory manner. He believed Ms Y’s support would be reduced. He was so concerned he submitted a safeguarding concern to the Council in July 2022. He informed the social worker about this.
30. The Council’s records confirm Mr X submitted a safeguarding referral. The Council allocated the referral to the social worker subject to the matters complained about. The Council acknowledges this was an error. Mr X says without his knowledge the Council did not instigate safeguarding and instead dealt with his concerns as a formal complaint. He discovered this information from a third party.
31. On 30 June 2022, the Care Provider wrote to the Council giving notice to terminate the contract for Ms Y’s care and set out the reasons for this. The author of the letter explained “This is solely because of the uncertainty of payments and when they will be sorted, I appreciate this is totally out of your control and I am saddened and shocked that Social services would put a vulnerable person in this position with the likely hood she will lose her carers who she has built amazing relationships with”. A new care provider had to be found. Mr X says this created uncertainty for Ms Y and significant stress for him.
32. In its response to my enquiries, the Council acknowledged its failure to ensure the direct payment budget was sufficient to meet the costs of care and that the direct payment account was “… being insufficiently credited to cover the cost on invoices, in line with the previous support plan and uplifted agency tariffs…Timelier review and decision making, including, interim decision making would have prevented this situation occurring”.
33. In mid-July 2022, Mr X received another telephone call from the social worker. He says the social worker confirmed she had seen the safeguarding referral. He says the social worker changed her reasoning for withdrawing night support saying, the carer said “[Ms Y] goes to bed each night at a reasonable time and sleeps through until morning”. Mr X says the social worker fabricated this statement to justify her views. He says he was present when the social worker met the carer, and the carer did not make such comments. The carer also refutes having ever made such a statement to the social worker and she subsequently submitted a formal complaint about this.
34. The Council received a letter from the hospital overseeing Ms Y’s care in July 2022. I have had sight of this letter. It sets out the complexity of Ms Y’s condition, and that her condition results in a “…cognitive impairment and an impression that she is able to cope with everyday living and circumstances that could be out of her control. With the cognitive issues, she has great difficulty… making decisions about her safety, her vulnerability and her safeguarding”.
35. The social worker contacted Mr X to confirm she had received the letter from the hospital and arranged a meeting on 4 August 2022 to further review Ms Y’s needs. At this review Mr X says the social worker made inaccurate and false statements about Ms Y’s abilities and her living circumstances. For example, the social worker suggested Ms Y’s needs did not merit 24-hour care, that she slept well each night in a bed, when in fact she sleeps in a chair and has broken sleep. Mr X says when he challenged the social worker, the review ‘collapsed’. The social worker then suggested making a referral for an OT assessment to identify any suitable aids that may minimise falls within the home and a separate functional OT assessment to determine Ms Y’s capabilities. There was a significant delay in the referral being made.
36. A further ‘light touch’ review of Ms Y’s needs was completed in September, October, November & December 2022. The social worker again recorded the view that Ms Y did not “…have an identified need for night time support and therefore does not require personal assistants during this period of time”, but due to the extensive period of time she had received such support any such reduction would need to be done gradually.
37. The review document again records the difficulties Ms Y had with decision making and reasoning, that she needed to “…draw upon support and advice from others at times when making decisions as he does experience difficulties with her short term memory which can lead to [Ms Y] forgetting decisions she has made or would like to make - and at times being able to appropriately weigh up information in relation to these decisions. This arises due to [Ms Y] experiencing Hydrocephalus and has a shunt fitted - this is reviewed annually at the [London] Hospital. [Ms Y] has undergone various brain scans in the past which demonstrate evidence of impairments to her brain which can impact upon her cognition and attention span”.
38. The social worker recorded the layout of Ms Y’s home, that “… [Ms Y’s] bedroom is a mirror of her living room, such as the layout and sofa etc, but this has not proven to be effective in encouraging [Ms Y] to sleep in her bedroom”, and, that an OT assessment could ‘explore’ if a profiling bed and grabrails would be appropriate.
39. The social worker recorded the OT assessment was due to be completed on 26 October 2022. This did not take place.
40. The Council responded to Mr X’s complaint in writing on 6 December 2022. I have had sight of this letter. The author, a senior manager, acknowledged significant delays in completing reviews, support planning, and a delay in the provision of an adequate personal budget. The manager also acknowledged poor communication with Mr X in relation to the safeguarding referral, and a breakdown of the relationship with the social worker. She confirmed a new social worker would be allocated to review Ms Y’s needs. She said the current care package would be maintained until an OT assessment had been completed, and that following the completion of the OT assessment, a joint review would be held which included Ms Y’s support network to finalise decisions about Ms Y’s ongoing needs.
41. The assessment was not completed until April 2023, after Mr X made a complaint to this office. The Council acknowledges there “…were significant delays in relation to the commencement of Occupational Therapy Intervention”.
42. I have had sight of the OT assessment completed on 12 April 2023. The assessor recorded the referral had been “…initiated to explore [Ms Y] functional and physical needs throughout the day and night and to explore alternate provision for sleeping”. Ms X says the OT was unsure how she could assess Ms Y’s functional abilities over a 24-hour period. The assessor made some recommendations for minor adaptations and reported that it may be appropriate to consider assistive technology to give a clearer picture of Ms Y’s day and night routine at the next care review.
43. Mr X says he has not received copies of assessments and care plans completed for Ms Y since 2020.
44. The Council agreed to uplift the direct payment on 18 August 2022. Mr X confirms Ms Y received the backdated payment on 30 August 2022.
45. Mr X says the situation has caused him and Mrs X uncertainty and significant stress and distress and affected their trust and confidence in social services.
46. In its response to my enquires the Council “…acknowledged that Adult Social has failed to meet its statutory duties of care in relation to completion of reviews in a timely way, as well as to ensure that the Direct Payment budget was sufficient to meet the cost of care, Adult Social Care was experiencing a significant demand on the service, resultant from the COVID-19 pandemic as well as significant staffing pressures”.

Analysis

47. It is not the Ombudsman’s role to decide if a person has social care needs, or if they are entitled to receive services from the Council. The Ombudsman’s role is to establish if the Council has assessed a person’s needs properly and acted in accordance with the law.
48. In this case, the Council failed on a number of levels to act in accordance with the Care Act.
49. The Council failed to review Ms Y’s care between 2017 and 2020. Section 27 of the Care Act, says a council must: ‘Keep Care and Support Plans/Support Plans under general review’. Without regular reviews care plans can become out of date meaning that people are not receiving the care and support they need to meet their needs. In this case, I do not consider the Council’s failure caused Ms Y any significant injustice. Throughout the unreviewed period, she continued to receive the care she needs.
50. The issues in this complaint flow from the reassessments/reviews of Ms Y’s care completed from 2020 onwards. I consider the assessment/review documents completed from 2020, barring the OT assessment, to be flawed, and not in accordance with the Care Act. There are numerous inaccuracies and contradictory statements contained in all the documents. The conclusions have no evidential basis and are based solely on the untested assumptions of two social workers. Reference was made to the use of assistive technology in establishing the reducing the need for 24-hour care. At the time, it was not possible to know whether such measures were appropriate or would be successful because they were untested.
51. There is simply no evidence, other than comments from Ms Y’s to support the claims that Ms X did not require 24-hour care/support. Both social workers appeared to disregard information which evidence Ms Y has difficulty with decision making and reasoning. Both also disregarded the medical evidence confirming Ms X to have a brain impairment affecting her cognition.
52. In one assessment document a social worker recorded Ms Y did not need 24-hour care and could be left alone for a few hours, but then recorded Ms Y to be unstable on her feet, that she could not stand for more than 4 minutes and was likely to fall if left without support. This is an example of the chaotic way in which the assessments/reviews were conducted.
53. If, as a result of a reassessment, a support package is reduced or changed in a significant way, then the law requires that the council provides a detailed and convincing explanation as to why this is happening, for example because the person’s condition has improved substantially. There is no such convincing explanation here.
54. The Council’s delay in responding to Mr X’s alerts about the increase in care costs caused significant problems for both Ms Y, Mr X and the Care Provider. Mr X was put to significant time and trouble chasing the Council, and when his attempts were unsuccessful, he took money from his own personal funds to keep the direct debit account in credit. He should not have had to do so. Mr X says although this issue caused him significant stress, he did not incur any personal financial disadvantage, as the loan was interest free.
55. The delay in uplifting the direct payment also had a significant impact on the Care Provider. It was unable to continue to carry the financial deficit, so it gave notice to terminate the contract. This resulted in the breakdown of an established care package.
56. There was no fault by the Council in its decision not to progress a safeguarding referral made by Mr X, but it is at fault for not informing Mr X. The Council acknowledged it should have informed Mr X that his concerns did not meet the threshold for safeguarding and would instead be managed through its complaints process.
57. The Council’s complaints team failed to investigate Mr X’s complaints properly. It simply reiterated the view of officers from social services. This was a missed opportunity to review all the information and evidence it had on file.
58. Mr X has understandably lost confidence in the Council’s ability and willingness to assess Ms Y in line with the Care Act.
59. The most appropriate way to resolve this concern is for there to be a reassessment of Ms Y’s needs carried out by an assessor who has experience of working with people with a learning disability.

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Agreed action

60. The Council should, within one month of the final decision:
• commission an assessment of Ms Y’s care needs from a suitably qualified professional, including the views of significant others in Ms Y’s life, and provide this office with a copy;
• draw up a support plan from the assessment, and take all reasonable steps to reach agreement with Ms Y and Mr X and provide Mr X and this office with copies;
• provide Mr X with an apology from a director of adult services for the failures set out above;
• pay Mr X £250 for the time and trouble he has been put to pursuing this complaint with the Council and the Ombudsman.
61. Within three months:
• consider any training needs of officers completing or overseeing needs assessments under the Care Act.

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Final decision

62. The Council failed to act in accordance with the law during assessments/reviews of Ms Y’s care needs from 2020 onwards. It also failed to ensure an adequate personal budget was in place which resulted in the breakdown of an established care package. The Council also failed to communicate effectively with Mr X.
63. The above events caused Mr X stress, distress and significant frustration in challenging and pursuing matters with the Council over a prolonged period of time.
64. The above recommended actions are a suitable way to remedy the injustice caused.
65. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman