Summary: Mr X complained about how the Council assessed his and his wife, Mrs X’s, social care and support needs. There was no fault in how the Council proposed to assess Mrs X’s needs. However, the Council has not properly explained how it decided how many hours a week Mr X cares for her. The Council agreed to review Mr X’s support plan.

The complaint

1. Mr X complains about how the Council assessed his and his wife, Mrs X’s, social care and support needs. He says the Council:
• failed complete a care and needs assessment for Mrs X;
• delayed and completed an inadequate carers assessment for him; and
• failed to provide him with adequate support as a carer for Mrs X.
2. As a result, Mr X says he and Mrs X have gone without support they need. They want the Council to assess Mrs X’s needs and provide them with adequate support.

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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 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

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What I have and have not investigated

8. I have investigated how the Council assessed or proposed to assess Mr and Mrs X’s care and support needs from January 2023.
9. Mr X’s complaint about events before 2023 is late. I do not consider there are good reasons he could not have complained about earlier events sooner or that there are other good reasons to investigate those events now.

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How I considered this complaint

10. I considered:
• the information Mr X provided;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Assessing needs for care and support

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.
13. 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.
14. The Care and Support Statutory Guidance (“the guidance”) says councils should carry out needs assessments in an appropriate and proportionate way. Assessments should be flexible and can carried out in different ways, including:
• a face-to-face assessment between the person and an assessor;
• a supported self-assessment, which should use similar assessment materials as used in other forms of needs assessments, but where the person completes the assessment themselves and the local authority assures itself that it is an accurate reflection of the person’s needs (for example, by consulting with other relevant professionals and people who know the person with their consent);
• an online or phone assessment, which can be a proportionate way of carrying out assessments;
• a joint assessment, where relevant agencies work together to avoid the person undergoing multiple assessments;
• a combined assessment, where an adult’s assessment is combined with a carer’s assessment so that interrelated needs are properly captured and the process is as efficient as possible.
15. However, the guidance also says that the assessment must be person-centred and must involve the person whose needs are being assessed.
16. If someone lacks the ability to consent to or ask for an assessment, a council should still carry out an assessment and should involve any person it considers to be interested in their welfare.
17. When deciding whether someone has or does not have the ability to consent to an assessment, a council must consider both the Mental Capacity Act 2005 and the associated code of practice.
18. 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.

19. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
20. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

21. 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.

Carer’s assessments

22. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
23. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Background

24. Mr X says his wife, Mrs X, has substantial care needs as a result of several serious health conditions. He says he asked the Council for help caring for Mr X on several occasions before 2023. The Council says Mr X declined assessments at those times.
25. Because of her health conditions, Mr X says Mrs X cannot take part in an in person, telephone or online assessment with the Council.
26. Mr X says he provides all of Mrs X’s care. Due to his own circumstances, Mr X is concerned about his ability to continue caring for Mrs X and the impact his current caring role has on his wellbeing. He wants the Council to assess Mrs X’s care and support needs through him, so he knows what help is available.
27. Mr X contacted the Council again in late 2023, asking for an assessment of Mrs X’s case needs and his support needs as a carer. The Council told Mr X it would need to meet with or speak to Mrs X as part of the assessment. Mr X says this is not possible.

Assessing Mrs X’s care and support needs

28. The law says that care needs assessments must include the person being assessed. However, Council’s must also be flexible and creative about how it carries out those assessments, which ensuring the person with care needs and take as full a part in the assessment as possible.
29. I am satisfied the evidence shows the Council has been as flexible as possible in proposing ways of assessing Mrs X’s needs. It has suggested:
• a supported self-assessment, with Mr X’s help, to minimise any contact it needs to have with Mrs X;
• speaking with Mrs X by either telephone or virtual meeting, to avoid having to visit in person;
• arranging an assessment to coincide with other appointments Mrs X already has, such as with her GP or other health professionals;
• carrying out a joint assessment with Mrs X, Mr X and health professionals known to Mrs X to fully capture her needs.
30. The Council sought information and advice from health professionals who know Mrs X and who told the Council she has full capacity to make and communicate her decisions. It also considered whether there is any evidence Mrs X lacks the ability to consent to or take part in the assessment. It has noted Mrs X has contact with other professionals. Although this does cause her distress, she and Mr X are able to manage those interactions.
31. The Council has also given clear reasons why it needs to have some contact with Mrs X during the assessment. The law expects the Council to involve her, and based on Mr X’s description, it believes she may have complex needs which require a professional assessment. In particular, the Council said it needs to properly understand Mrs X’s needs so that it can plan for times when Mr X might not be available to care for her.
32. I am satisfied with the Council’s explanation for needing to have some contact with Mrs X as part of the assessment. I am also satisfied it has taken proportionate steps to make this as manageable for Mrs X as possible.
33. I am satisfied the evidence shows the Council is willing to work flexibly with Mr X to assess Mrs X’s needs in a way which minimises, as much as possible, any distress to her though contact with social workers.

Assessing Mr X’s support needs as a carer

34. The assessment of Mr X’s needs as a carer took several months to complete. However, I am not satisfied this was due to any fault on the part of the Council.
35. The Council met with Mr X to carry out a carer’s assessment within a week of his October 2023 request. The Council identified Mr X had some need for support in his caring role. It decided this could be met through services it already commissions, including respite care / sit-in services and a small direct payment to support Mr X’s wellbeing. Mr X declined the Council’s offer of respite and short breaks.
36. Mr X disagreed with the Council’s initial assessment, and provided extensive comments. He also disagreed with the level of payment the Council suggested. The evidence shows the Council considered these and made some changes to its assessment, though it did not accept that Mr X spent as many hours caring for Mrs X as he stated.
37. The Council sent Mr X a draft copy of his support plan in December 2023 and asked Mr X for documents so it could set up his direct payment.
38. Mr X and the Council exchanged further emails in late 2023, which covered Mr X’s continued disagreement over the assessment, amount of direct payment the Council had offered and the support available. Mr X told the Council he did not want carers to support Mrs X at home, respite care or other sit-in type services. However, when the Council asked Mr X what support he felt would help him and Mrs X, he could not explain this to the Council.
39. After Mr X provided the required documents, the Council set up the direct payment in early 2024, backdating this to October 2023.
40. Mr X told the Council the care and support her provides to Mrs X is worth significantly more than the direct payment it offered him. However, it is not the Council’s role to provide Mr X with an income. The Council correctly signposted Mr X to the Department for Work and Pensions for information about entitlements to benefits, such as carer’s allowance. It also offered to refer Mr X to a local charity to check his entitlement to any benefits.
41. For the most part, there was no fault in how the Council carried out its assessment of Mr X’s support needs as a carer.
42. However, I am not satisfied the Council has resolved the difference between the number of hours Mr X says he cares for Mrs X, and the number of hours it recorded in its assessment. The Council has not explained why it considers Mr X provides fewer hours of care to Mrs X than he says he does. I consider that lack of explanation to be fault.
43. The Council should explain to Mr X why it does not accept the number of hours of care he states he provides, or it should review his support plan and update the hours accordingly. If this makes any difference to the direct payment, it should backdate any increase to when the direct payment started.

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Agreed action

44. Within one month of my final decision the Council will review Mr X’s support plan, including the number of hours it does accept he cares for Mrs X and backdate any increase in his direct payment (if there is an increase) to when the direct payment started.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. There was no fault in how the Council proposed to assess Mrs X’s needs. However, the Council has not properly explained how it decided how many hours a week Mr X cares for her. The Council agreed to review Mr X’s support plan.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman