Summary: Miss C complained the Council failed to complete an acceptable care assessment within a reasonable time frame, delayed in responding to her correspondence, did not adequately correct faults found in its complaint responses and failed to provide care following a further assessment. We have found fault with the Council’s actions which caused injustice to Miss C. The Council has agreed to remedy the injustice caused.

The complaint

1. Miss C complained the Council:

• Completed a delayed and inadequate care assessment;
• Failed to provide timely responses to her correspondence;
• Failed to correct the issues upheld in her stage one and two complaints; and
• Has not yet provided any care following a second care needs assessment.

Miss C said the Council’s actions have impacted her mental and physical health. Miss C would like the Council to investigate the actions of a social worker, provide an in person apology and accept the faults. She would also like retrospective direct payments from the time of her first referral.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, sections 26( ), 26A(1) and 34(3) 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. As part of the investigation I have:

• Considered the complaint and the documents provided by Miss C;
• Made enquiries of the Council and considered its response;
• Spoken to Miss C; and
• Provided Miss C and the Council 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

Legal and Administrative Background

Care Assessment: duty to assess, eligibility criteria and assessment

5. 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.
6. Council’s 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.
7. The Care and Support Statutory Guidance sets out that a comprehensive assessment must be carried out by an appropriately trained assessor and that staff who are involved in the first contact with the person should have appropriate training to support the identification of any underlying conditions, or to ensure that complex needs are identified early.
8. The Care and Support Statutory Guidance sets out, to support the person’s involvement, the local authority should establish the individual’s communication needs and seek to adapt the assessment process accordingly. In doing so local authorities must provide information about the assessment process in advance. This includes providing the list of questions to be covered in the assessment, in an accessible format.

Care Plan

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

Direct Payments

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. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.

Council Complaint Procedure

12. Councils have a duty to maintain an adult social care complaints procedure.
13. The Council’s published adult social care complaints procedure details a two-stage process for managing complaints. At stage one the Council will nominate an appropriate officer to be the point of contact for the complaint. All stage one complaints will be acknowledged within two working days and a full written reply sent within 20 working days from the date it is processed for investigation.

Reasonable adjustments for people with disabilities

14. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
15. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
16. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

Key Events

Care Assessments

17. The Council’s Adult Social Care Team received Miss C’s referral in September 2022. During her first conversation with the service, Miss C detailed she has long term Covid-19 and poor mobility, alongside neurodevelopmental and mental health diagnoses. Miss C was seeking direct payments to support her care needs.
18. Following this conversation there was a three-month gap before the assigned social worker (social worker 1) contacted Miss C to discuss the next steps. During this three-month period Miss C contacted the adult social care team twice to seek updates on her case.
19. The assigned social worker contacted Miss C to conduct a phone call. The social worker ended this phone call once they realised Miss C was in a public area. The social worker advised they would contact Miss C again in two weeks to continue the conversation.
20. While waiting for the second phone call, Miss C contacted her social worker to tell them of her specific diagnoses and associated needs. The message provided by Miss C contains clear information around how her neurodevelopmental and mental health diagnoses impact her and may affect her ability to engage with the care assessment.
21. The same week, Miss C’s social worker called her to arrange a time and date for the care assessment. Miss C asked for a copy of the assessment questions and details of the care assessment process. The social worker told Miss C there were no set questions, but the assessment would focus on Miss C and her needs. The social worker asked Miss C if a student social worker could attend the assessment and Miss C declined.
22. The social worker completed Miss C’s care assessment 23 March 2023, over 27 weeks after her first referral to the adult social care team.
23. The following day, Miss C messaged the social worker to explain that she did not feel the assessment went well because;

• she felt unable to communicate effectively during the assessment.
• A second social worker was present, which she had not expected after she refused the attendance of a student social worker.
• The Council did not make her aware that she could have support from another person during the assessment.
• she felt the social worker failed to get a clear understanding of her needs.
• she felt the social worker made assumptions about her needs and discounted relevant information.

24. In response to this message the social worker called Miss C on 24 March 2023 and gathered further information during the call.
25. Five days later the social worker closed Miss C’s case as she was found not eligible for support following the assessment. Miss C was informed of this decision on 06 April 2023. In response to the social worker closing her case, Miss C complained.
26. Council records show social worker 1 made further enquiries of Miss C’s needs to relevant services after closing Miss C’s case.
27. Following Miss C’s complaint, a new social worker (social worker 2) contacted the mental health team to discuss transferring Miss C’s case because of her involvement with a local mental health support team. The referral to the mental health team led to a mental health social worker and occupational therapist completing a new assessment of Miss C’s needs.
28. The second assessment took place in July 2023, 39 weeks after Miss C’s first referral to the adult social care team. It determined Miss C did have eligible care needs. The council completed a support plan for Miss C in September 2023. Miss C’s support plan details she requires a carer to support her with daily living tasks which she will receive via direct payments from the Council.
29. As of 10 January 2024, Miss C’s direct payments had not yet started.

Complaint Handling

30. After receiving the letter detailing the closure of her case, on 06 April 2023, Miss C sent a complaint to the Council about her concerns that her first assessment had been inadequate.
31. A social worker (social worker 3) contacted Miss C five days later and discussed the complaint. Over the next four weeks Miss C contacted the adult social care team on multiple occasions to seek an update on her complaint and whether she will receive a new assessment. Most of her correspondence did not receive a response.
32. Social worker 1 responded to Miss C, stating they had completed the first assessment correctly. Social worker 1 explained to Miss C they would complete a mental health referral, because of Miss C’s ‘extremely disturbing and obsessive’ behaviour. Social worker 1 referred Miss C to the mental health team who were already providing Miss C with prescriptions and support for her Attention Deficit and Hyperactivity Disorder (ADHD). The mental health practitioner who supports Miss C responded to this referral. The response detailed Miss C’s actions and excessive communication were in line with her diagnosis, for which the team were supporting her. Social worker 1 had sought information from this team previously, but they did not provide the information before the closure of Miss C’s case.
33. The Council issued a stage one response 51 days after Miss C sent the complaint. The complaint response upheld one out of 18 points raised by Miss C and found 4 partially justified, 6 inconclusive and 7 not justified. The Council accepted fault for the delay in assigning Miss C a social worker and offered an apology. The Council also apologised multiple times if Miss C felt that errors had occurred but did not find any further fault.
34. Miss C asked the Council to review her complaint following the stage one response. The Council issued a stage two response which upheld 8 of the points raised by Miss C and found 3 partially justified, 3 not justified and 4 inconclusive.

My Consideration

35. The Council failed to consider reasonable adjustments throughout the assessment process and did not understand the impact of Miss C’s needs.
36. The Council failed to adapt Miss C’s care assessment and provide her with an accessible list of assessment questions.
37. The Council failed to complete a satisfactory care assessment, within a reasonable time frame. Miss C waited over 27 weeks from the date of her first referral to the date of her care assessment and the social worker failed to gather relevant information as part of the assessment.
38. There were significant delays in correspondence between Miss C and the adult social care team. At one point there was a gap of eight weeks between Miss C seeking an update and the Council responding.
39. Social worker 1 was not fully aware of Miss C’s needs when they closed her case. This also meant social worker 1 completed an unnecessary mental health referral.
40. The Council have delayed in providing Miss C’s direct payments.
41. The Council failed to provide a complaint response to Miss C within 20 days.
42. The Council failed to provide an effective apology to Miss C in its stage one and two complaints.
43. The Council has now completed a satisfactory assessment of Miss C’s care needs, it is therefore not for the Ombudsman to decide what support Miss C should receive.

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Agreed actions

44. To address the injustice arising from the faults identified the Council agrees that, within one month of my final decision, it will:

• Issue a written apology to Miss C, following the LGO’s effective apology guidance. Guidance on making an effective apology can be found here Guidance on remedies - Local Government and Social Care Ombudsman.
• Ensure Miss C’s direct payments, as detailed in her September 2023 care plan, begin.
• Make a symbolic payment of £400 for the distress caused by the faults.
• Make a symbolic payment of £300 for the time and trouble caused to Miss

C by the faults.

45. Within three months of my final decision the Council has agreed it will:

• Update its ‘3 Conversations’ care assessment guidance to ensure the adult social care team are aware of its anticipatory duty to provide reasonable adjustments.
• Review its procedure to ensure adult social care service users are routinely asked or prompted to decide whether reasonable adjustments are necessary and correctly record them once reasonable adjustments are agreed.

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

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Final decision

47. In completing my investigation I have found fault which caused Miss C injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman