Summary: Mr X complained the Council failed to meet his care needs. The Council failed to complete a review of Mr X’s care needs for 17 months, failed to consider Mr X’s capacity to make decisions about his care and finances, stopped his direct payments without notice and failed to meet his care needs in the meantime. The Council agreed to apologise to Mr X, make a symbolic payment for the distress caused to him, and review his care needs and direct payment arrangement.

The complaint

1. Mr X complained the Council has failed to meet his care needs. Specifically Mr X complained:
1. about the actions of the Council’s social workers;
2. the Council’s financial assessment was not accurate;
3. the Council’s care package did not meet his needs; and
4. the Council did not complete the financial review and care review it said were necessary after it considered his complaint about the matters.
2. Mr X said this caused him anxiety, stress and his standard of living declined. Mr X wanted the Council to put appropriate care in place for him.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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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What I have and have not investigated

7. I have not considered Mr X’s substantive complaints to the Council in points a) and b) as these events occurred in 2021 or earlier and are therefore late complaints. There is no good reason to investigate them now.
8. I have investigated the Council’s response to Mr X’s request for additional care in point c), as it is related to the Council’s actions following its complaint response to Mr X in point d).

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How I considered this complaint

9. I considered the information Mr X sent me.
10. I read the documents the Council provided in response to my enquiries.
11. Mr X 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

Assessment

12. 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.

Care Plan

13. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support 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.

Charging for social care services: the power to charge

15. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
16. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Direct payments

17. 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.
18. The Care and Support Stautory Guidance sets out how councils should administer direct payments. It states that direct payments arrangements should be reviewed every 12 months, generally at the same time as the care plan review. It should only be terminated as a last resort. Council’s should take all reasonable steps to address any situations without the termination of the payment. It should conduct effective, but proportionate monitoring processes to identify any potential problems before a termination is necessary.
19. A council can stop direct payments temporarily in certain circumstances. Where it does so, it should make alternative arrangements to make sure the person concerned has continuity of support for their care needs.
20. Whenever the council is considering discontinuing direct payments it should discuss it with the recipient, their carers and anyone managing the direct payments as soon as possible to explore all available options before making the decision.
21. If the council decides to withdraw direct payments it must conduct a review of the care plan and agree alternative care and support with the recipient, their carer and independent advocate, if they have one.

Mental Capacity Act

22. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Mental capacity assessment

23. The Mental Capacity Act 2005 sets out how a council should consider someone’s capacity to make decisions for themselves. It says a person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

24. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. A person’s capacity may be in doubt where:
• their behaviour or circumstances cause doubt as to whether they have the capacity to make a decision;
• somebody else says they are concerned about the person’s capacity; or
• the person has previously been diagnosed with an impairment or disturbance that affects the way their mind or brain works and it has already been shown they lack capacity to make other decisions in their life.
25. An assessment of someone’s capacity is specific to the decision to be made at a particular time. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
26. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

What happened

27. Mr X is elderly, lives at home on his own and has needs for care and support. English is not Mr X’s first language. He has been receiving support for his identified care needs from the Council since at least 2019.
28. In April 2021 the Council completed a reassessment of Mr X’s needs. It set out that he had mobility needs, was in physical poor heath and had early onset dementia. It said that in 2021 Mr X had capacity to make decisions about his care and support. Mr X was supported to engage with the assessment by a dementia support worker who supported with translation. The Council decided Mr X needed 24 hours of care a week to support with dressing, personal care, preparing meals and accessing the community. This stated the care would be provided by direct payments which Mr X would manage. At that time Mr X was not required to make any contribution to his care charges.
29. In April 2022 the Council wrote to Mr X and told him it had recalculated his charge for non-residential care services to take into account the change in benefit rates. It calculated Mr X needed to pay £10.55 per week towards his care costs. It said this amount would be deducted from Mr X’s direct payments. In order to cover the cost of the care bills, it said Mr X would need to pay this amount into his direct payment bank account or to his managed account provider on a regular basis.
30. Mr X contacted the Council in June 2022. He said the Council:
• had not considered the impact of a house move on his care and support needs;
• the care he had in place was insufficient for his needs; and
• the Council had not properly considered his financial assessment and he could not afford the contributions to his care costs.
31. The Council wrote to Mr X again in November 2022 and said that due to a change in its policy it had conducted a further financial reassessment. It said Mr X would have to pay an increased amount of £40.55 per week which would be deducted from his direct payments beginning in January 2023.
32. The Council responded to Mr X’s complaint from June 2022 in February 2023. It said:
• it had conducted a review of the finance matters and it believed the matter was resolved; and
• it would reassess his care and support needs.

Events since the complaint

33. In March 2023 Mr X’s son contacted the Council on Mr X’s behalf. He said Mr X could not afford the £10.55 contribution to his care, and the Council had told Mr X if he did not pay the further £40 contribution his care would stop. Mr X’s son asked the Council to reassess Mr X’s financial circumstances and charges. He said Mr X had recently had a stroke and now needed more care in his care package.
34. The Council said it told Mr X about how to appeal the financial reassessment and he began to provide information via email. It said the information Mr X was providing was not relevant to the reassessment. It said that it spoke to him on the phone to explain the appeals process and in October 2023 Mr X’s son told it Mr X no longer wanted to appeal against the financial assessment and would pay the full contributions.
35. Mr X’s support worker told the Council in September 2023 that Mr X had deteriorated in health, he had had a further stroke, and needed additional care. She said Mr X could not afford the charges for the care since the change in policy and he had additional care needs now which he was paying for directly. The support worker told the Council Mr X would need a care act advocate for an assessment.
36. The Council completed an audit of Mr X’s direct payment account at the beginning of November. It found that Mr X had not paid any contribution to the account since June 2023 and there was over £1600 in arrears. It also recorded the same had happened previously but when the Council spoke with Mr X’s son the payments were made and the payments continued. The Council decided to stop paying direct payments from mid-November until Mr X made a lump payment into the account. The Council’s records said it would contact Mr X, tell him the direct payment had stopped and discuss other options of support with him until it could complete a review.
37. The Council wrote two letters to Mr X at the beginning of November and told him because he had not been paying his contribution it was considering suspending his direct payments. The second letter said it had paid the direct payments for a further week only and was suspending his direct payment immediately. It said it would contact him to discuss his care options.
38. In mid-November Mr X’s support worker contacted the Council and asked if it could reinstate Mr X’s care and said he had started to make back payments.
39. Two weeks after it decided to stop the payments the Council contacted Mr X and told him ‘short term services [were] available to him should he wish to explore this’. Mr X said he did not know why the direct payments had been cancelled as he had been paying his contribution and he was receiving support from friends. A further two weeks later the Council told Mr X it could offer care workers as an interim measure and if Mr X wanted that he should let the Council know.
40. Mr X’s support worker contacted the Council several times asking if the review of the direct payments had been completed and if Mr X’s care could be reinstated. The Council told the support worker Mr X could have support from a care agency, and if he accepted the interim support he would be allocated a social worker to complete a reassessment sooner. At the beginning of December the support worker confirmed that Mr X had gone to stay near friends to have his care needs met and did not think an interim care package would meet his needs. She stated Mr X had not known about the arrears and was now paying a £50 contribution.
41. The Council told Mr X’s support worker that he had arrears of over £1600 and he would have to make a lump sum payment before the direct payments could be reinstated. Mr X’s support worker told the Council Mr X could not afford a lump sum and asked if he could repay in instalments.
42. In response to my enquiries the Council told me that it has a significant backlog of people waiting allocation for a care act assessment or reassessment. It said it has been rating the waiting list to complete assessments in order of urgency.
43. It said in January 2024 there were 1851 people waiting for an assessment or reassessment of their care and support needs. It said 554 people had been waiting for 6 months or longer, and 366 people had been waiting for over a year.
44. In response to the backlog the Council states it has taken a number of steps which included:
• creating a backlog team;
• investing in recruitment;
• implementing short term services for people waiting for assessment/reassessment; and
• adding additional resources to the review teams.

My findings

45. The guidance states the Council should have completed a reassessment of Mr X’s care and support needs in April 2022; which was 12 months since his previous review and as Mr X had said the care was insufficient for his needs. It should also have reviewed his care needs after it responded to his complaint in February 2023 when it said it would. It should also have completed a review when Mr X’s son said Mr X had been unwell and needed additional care in March 2023, and in September 2023 when Mr X’s support worker said his health had deteriorated further and he was paying for additional care himself. The Council had still not completed the reassessment in January 2024, that was a delay of 17 months and was fault. It leaves uncertainty about whether the care Mr X received met his needs.
46. Mr X has dementia, which is a degenerative condition. In 2021 the Council said Mr X had capacity to make his own decisions but needed support during an assessment due to the language barrier. In September 2023 Mr X’s support worker told the Council that Mr X’s health had deteriorated and he needed a care act advocate. There is no evidence the Council considered if Mr X required additional support to make decisions about his care and support or his finances at any point since April 2022 when it should have completed the first review. That was fault and leaves uncertainty about whether the Council should have provided more support to Mr X in making decisions about his care and support.
47. The Council did not provide Mr X sufficient notice it intended to stop his direct payment as it gave a week’s notice. There is no evidence it discussed alternative options with him in advance of November 2023 when it stopped his direct payments. The Council did not contact Mr X to discuss his options until two weeks after it made its decision. When it contacted him, it did so over the phone and without an interpreter or an advocate. The failure to discuss the problem with direct payments in advance, and with appropriate support to meet Mr X’s language requirements was fault and not in line with the Care and Support Statutory Guidance.
48. The Council states there was evidence of Mr X struggling to manage the direct payments in 2022. There is no evidence the Council reviewed the direct payments in 2022 or that it considered Mr X’s capacity to manage the direct payments since April 2021. Since the Council stopped Mr X’s direct payments in November 2023 there is no evidence the Council discussed the problem with him, discussed a solution or alternative such as a managed account, or completed a review of his needs in line with the guidance. All of that was fault.
49. The faults identified caused uncertainty about whether the arrears would have occurred and Mr X’s direct payments would have been stopped abruptly without interim support had the Council acted without fault.
50. The Council offered Mr X ‘short term services’ and later offered care workers as an interim measure when it stopped his direct payments. The records do not show how this was explained to Mr X, what the interim care package would consist of or how the Council ensured Mr X understood what was being offered and the impact of accepting or not. By the time the Council discussed a care package with Mr X’s support worker, Mr X had already moved to stay near friends to meet his needs. The failure to clearly explain what support it could provide and to discuss alternatives was fault and means that Mr X was without support for his assessed care needs for one month (mid November 2023 to mid-December 2023) and then had to rely on friends to meet his needs.
51. The Council has identified that it has a significant backlog of people waiting longer than the legislation states for a care act assessment and reassessments. That is fault and may be causing injustice to other people who have not complained to us. I have made an appropriate recommendation below for the Council to improve its service.

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Agreed action

52. Within one month of this decision the Council will:
• write to Mr X and apologise for the avoidable uncertainty and distress caused to him by the faults identified above;
• pay Mr X a symbolic amount of £1000 for the avoidable uncertainty caused to him and to recognise the month he was without support to meet his assessed care needs;
• carry out a care and support review (with an independent advocate if appropriate) to identify Mr X’s current care and support needs;
• carry out a review of Mr X’s direct payments (with an independent advocate if appropriate) to establish if direct payments remain appropriate; and
• discuss an appropriate payment plan with Mr X for the current arrears owed.
53. Within three months of this decision the Council will create an action plan identifying the actions it has already taken, and intends to take to reduce the significant backlog of care act assessments and reassessments. The action plan will identify the actions, the timescale for each, and the measure of success. The Council will provide a copy of the action plan, and then a review of the plan within a further three months.
54. The Council will provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and to avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman