Summary: Mrs Y complained about the Council’s assessment and review of Mr X’s care and support needs. We have found fault by the Council in failing to review, or properly review, Mr X’s support needs from 2018 to 2020. But we do not consider this caused Mr X any injustice.

The complaint

1. Mrs Y, on Mr X’s behalf, complains about the Council’s assessment and reviews of Mr X’s care and support needs. She says the Council failed to:

• carry out a proper assessment of Mr X’s care and support needs in 2012. It wrongly assessed he required seven hours of care a day and did not need support from carers for the rest of the day or overnight;
• complete any reviews of its assessment after 2012, until November 2021; and
• respond to requests it carry out reviews of its assessment, or consider further information provided about Mr X’s needs, from 2012 until November 2021.

2. Mrs Y says, because of the Council’s failure to properly assess and review Mr X’s needs, it has not provided him with funding for the support he required. He had to fund this privately from his settlement trust which he should not have had to do.
3. The Council should apologise for its failures and repay the care costs Mr X has had to fund himself.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these.
5. 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)
6. 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)
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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

9. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
10. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Assessment

11. 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.
12. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

13. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. This 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. The support plan must 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.

Reviews

14. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

What happened

15. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

16. In 2007 Mr X suffered a traumatic brain injury. This caused him cognitive deficits, severe receptive and expressive dysphasia, challenging behaviour, seizures, and high anxiety.
17. Mr X had lived in the Council’s area prior to his injury. Following his injury, Mr X continued to live in the Council’s area with a family member.
18. A compensation payment was made to Mr X in connection with his injury. Z, an organisation specialising in brain injury assessment, rehabilitation and case management was appointed as Mr X’s case manager in 2009. In 2010 the Court of Protection appointed a deputy for Mr X’s property and affairs.
19. From 2010 to 2012 Mr X lived in a brain injury residential placement in the Council’s area, and then specialist brain injury units in another Council’s area for a period of assessment and rehabilitation.
20. In 2012 Mr X returned to live in the Council’s area for a trial of independent living with 24 hour care and support arranged and managed for him by Z.
21. Mrs Y works for Z as Mr X’s current case manager.

2012: Request for an assessment of Mr X’s need for care and support

22. In December, Z asked the Council to carry out an assessment of Mr X’s needs. Mr X’s 24 hour care, arranged by Z, was funded by his financial settlement.

2013: Council’s assessment of Mr X’s needs

23. The Council assigned a social worker to carry out Mr X’s assessment. They visited Mr X, completed an initial assessment in January, and had meetings with Z’s case manager about Mr X’s condition and needs.
24. In July, the Council had not yet made a decision about the support it considered appropriate to meet Mr X’s needs and held a further meeting with Z’s case manager. The Council said it needed further information to complete a full assessment.
25. Another social worker was assigned to complete the assessment. They began gathering further information, including about Mr X’s financial eligibility, and from other professionals working with him.

2014: Council’s first assessment and care and support plan

26. In February the social worker visited Mr X and Z’s case manager.
27. Z’s case manager told the Council they were concerned about the time it was taking to complete Mr X’s assessment.
28. In May the social worker completed Mr X’s support plan. This proposed provision for 1 hour 45 minutes support a day with personal care, meals and evening routine, and 16 hours a week support with community engagement.
29. In June, Mr X’s case was assigned to another social worker (A). They began the process of completing a further needs assessment.

2015: Council’s further assessment and care and support plan

30. Social worker A visited Mr X in March. Following this the Council completed a support plan which included the following:

• Mr X became anxious when not around other people. There was a risk that if left alone overnight, he might wander into the community to seek company. A telecare property exit sensor set up with a responder would meet this need;
• A carbon monoxide and smoke detector, arranged via telecare, would be needed in case of any emergency; and
• There was a risk Mr X might have an epileptic fit overnight, although he had not had any known fits for a year and was taking medication to stabilize his condition. He would need an epileptic sensor, set up through telecare to monitor any epileptic movements overnight, and a falls detector.

31. Mr X’s support needs were assessed as:

• 7 hours a day for shopping, appointments, maintaining home environment, and help with personal care, maintaining nutrition and medication; and
• Telecare support at night for a property exit sensor, carbon monoxide and smoke detection, epileptic sensor and falls detector.
1. The plan would be reviewed in October 2015.

32. The Council sent the support plan to Z and Mr X’s deputy. The deputy signed the support plan in August 2015.
33. The Council backdated the Mr X’s assessed support of 7 hours a day to January 2013, the date of its initial assessment. It made a payment to Mr X’s deputy for the cost of this support which had been funded until this point from Mr X’s financial settlement.
34. Z decided the Council’s plan did not meet Mr X’s needs. It considered 7 hours of support a day was not sufficient. Mr X required 24 hour care and it was not safe to leave him alone overnight with Telecare support. Z continued to provide Mr X with 24 hour care. The cost of the additional 16 hours of daily care, not funded by the Council, was paid from Mr X’s financial settlement.

2016: Review of the care and support plan

35. Social worker A visited Mr X in January. His support worker was present. They noted Mr X continued to need daily support but there was no evidence of a change in need. In their professional opinion, Mr X continued to have a health need for support but had not been considered eligible for this. The Council would continue to pay for the social care element of his support.
36. A revised care and support plan was issued in January. This recorded no change in Mr X’s needs and the existing support funded by the Council would continue. It also noted social worker A’s professional opinion Mr X would become dependent on 24 hour 1:1 care, and their concern he may not always have this in the future. They suggested Mr X live without 24 hour support for a trial period, with overnight support from telecare as set out in the 2015 care plan.
37. The Council sent the 2016 care plan to Mr X’s deputy and Z. The deputy told social worker A they and Z did not agree Mr X could ever try living on his own without 24 hour support. He would not know what to do in an emergency and would not wear a telecare device. Social worker A replied with their professional opinion and view that as Mr X was under 50 a trial of tasks without support could be considered.
38. The deputy signed the support plan but confirmed they did not completely agree with the Council’s review. Z continued to provide Mr X with 24 hour support and the gap between this and the support funded by the Council continued to be paid from Mr X’s settlement.

2017: Review of the care and support plan

39. Mr X’s case was assigned to another social worker (B).
40. Z’s case manager continued to tell the Council Mr X needed 24 hour care because his behavioural needs and cognitive deficits from his brain injury meant he could not be left alone.
41. In September social worker B reviewed Mr X’s needs and support plan. They noted this was an office based review, referring to Mr X’s distress during formal reviews conducted with an unfamiliar person. The review included Z’s records and input and confirmation there had been no change in Mr X’s condition since the previous review. It said there would be no change to the support funded by Council. It was also noted the social worker had offered to review Mr X’s needs in a public setting. Z would not agree to this unless it supported a bid for increased Council funded care.
42. Social worker B contacted Z’s case manager about the review:

• They said they had not been able to conduct Mr X’s review in person because he could not participate in the process without becoming distressed. An office based review, which included information from Z, had been completed. As there had been no significant change in Mr X’s social care and support needs since the 2015 assessment and 2016 review, there would be no change to the current care plan and Council funding. They planned to carry out another review in a year’s time;
• Z didn’t consider an office based review adequate in view of their continuing concern the level of care assessed by the Council did not meet Mr X’s needs, as he could not function safely without 24 hour support. They asked for a face to face review and the opportunity to discuss their concerns;
• Social worker B replied that the notes showed Mr X did not benefit from face to face contact. They asked to meet with Mr X and his support worker in the community. But this contact would not change the previous assessment of his support needs as no significant change in his condition had been reported since then.

43. I have not seen any evidence of further contact by Z with the Council about the 2017 support plan.

2018 and 2019: no reviews

44. I have not seen any evidence of any review of Mr X’s needs and support plan in 2018 or 2019.
45. In response to a request from Z, the Council carried out an occupational therapy assessment in 2019 on the safety and risk issues regarding the use of Mr X’s driveway.

2020: further review of the care and support plan

46. In April Mr X’s case was assigned to an officer for a telephone review. Covid-19 lockdown restrictions were in force at this time. The notes record:

• The officer spoke to one of Mr X’s support worker. They said there were no changes at the moment, but the officer should call back to complete the assessment with their team leader;
• The care assessment was completed by phone. There were no details of those involved in the assessment. Reference was made to Mr X’s relative as his carer, although this relative had died a number of years ago.
• There was no reason to doubt Mr X’s mental capacity to participate fully in the process. He did not have substantial difficulty in being involved in the process; and
• His care and support plan provided 7 hours of funded support.

47. I have not seen any evidence the Council told Z about the outcome of the review.

2021: Z’s complaint to the Council and re-assessment

48. In September 2021, Z complained to the Council about the level of support in his care plan. It said his private funding was becoming exhausted and it would be extremely difficult to support him in another setting. He required a detailed competent assessment of his needs and appropriate funding so he could continue to be supported in the most cost-effective way.
49. The Council completed a re-assessment in November. Following this, it told Z it had assessed Mr X’s dependency on the privately funded care had changed. Because of this increased dependency, provision would be increased but it also assessed this need could be met by the telecare service.

2022: Panel decision to increase support

50. Z was unhappy with the outcome of the re-assessment. In May Mr X’s case was presented to the Council’s Risk Panel who decided:

• Mr X’s needs had not changed. What had changed was his dependence and reliance on the 24 hour care he had been receiving to such a degree it felt he had now reached the threshold for 24 hour support; and
• It felt had, Mr X used the telecare support suggested, he would not require 24 hour support. But the risk of having this support removed now would be detrimental to his well-being.

51. The Council agreed to fund 24 hour support for Mr X. It also backdated payment for this support to November 2021.

My analysis - was there fault by the Council causing injustice?

The assessment of Mr X’s needs in 2014 and 2015

52. I appreciate Z and Mr X’s deputy disagreed with the Council’s assessment in 2015 about the level of support he needed. But this was the Council’s assessment and provided we consider the process was properly conducted we cannot interfere with the Council’s decision about this.
53. In my view, the Council started the assessment of Mr X’s needs promptly following Z’s request in December 2012. It took a long time to complete this process and the final and support plan was not issued until 2015. But I note the Council backdated funding for the support it assessed was needed to January 2013, when it started the process.
54. The evidence seen shows, as well as visiting Mr X, the Council obtained information from professionals involved with him and had a number of meetings and discussions with Z about his needs, before completing its assessment of the support he needed.
55. I consider the Council properly conducted the assessment process. I have not found fault in the way it completed the assessment in 2015.

The review of Mr X’s needs in 2016 to 2017

56. The Council reviewed Mr X’s care plan in 2016 and 2017. Z was involved in each review process and provided information about Mr X and his current condition. Social workers had visited Mr X in 2015 and visited again 2016.
57. The social worker conducting the review in 2017 made a professional judgement to carry out an office based review. They discussed this with Z and explained the reasons for not visiting Mr X at his home and why they considered the current level of support funded by the Council remained appropriate.
58. The Council told Z about the outcome of its reviews. I appreciate Z disagreed with this. But, as explained in paragraph 52 above, these were the Council’s reviews, and provided we consider they were properly conducted, we can’t interfere with the decisions made about the level of support funded by the Council.
59. My view is the Council properly conducted the reviews during this period. I have not found fault in the way it completed the reviews.

The review process in 2018 and 2019

60. I have not seen any evidence the Council reviewed Mr X’s needs and support plan in 2018 or 2019. The statutory guidance says councils should carry out reviews at least every 12 months.
61. I consider the Council’s failure to carry out reviews in 2018 and 2019 was fault. I have considered the impact of this fault below.

The review process in 2020

62. I do not consider the Council carried out an adequate review of Mr X’s care plan in 2020.
63. I understand it could only carry out a telephone review because of Covid-19 restrictions. But, in my view the Council could and should have obtained input and information from Z and its case manager. It did not do this and based the review on one call with a support worker who could only provide very limited information. It also recorded inaccurate information about Mr X’s family, and his ability to participate in the review process.
64. In my view there was fault in the way the Council completed the 2020 review. I have considered the impact of this below.

The assessment of Mr X’s needs and support in 2021 and 2022

65. The Council responded promptly in 2021 to Z’s request for a re-assessment of Mr X’s needs. I consider it completed this process properly, although Z disagreed with the outcome. Mr X’s case was then referred to the panel who reviewed the assessment and agreed the additional support, which was backdated to 2021.
66. I do not consider there was fault in the way the Council completed the assessment process in 2021 and 2022.

The impact of the failures in the review process from 2018 to 2020

67. I do not consider there is evidence for a finding the Council would have agreed to increase Mr X’s support before 2022, had it carried out reviews, or completed a proper review, in 2018, 2019 and 2020.
68. The Council’s assessment and reviews up to and including 2017 concluded Mr X did not need 24 hour support. The panel agreed in 2022, his needs had not changed. But it decided Mr X was now dependent on 24 hour support, and the risk of this being removed, because he could no longer fund it, would be detrimental to his wellbeing. It was on this basis the Council agreed to fund the additional care.
69. I have not seen any information to suggest Mr X was caused any uncertainty or distress because of the Council’s failures in the review process. There was no change in the care and support he received during this period.

My view, based on the evidence seen, is the Council’s fault in the review process from 2018 to 2020 did not cause Mr X any injustice.

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Final decision

70. I have completed my investigation of this complaint. I have found fault by the Council, as set out above. But I do not consider this fault caused Mr X any injustice.

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Investigator's decision on behalf of the Ombudsman