Summary: Mr B complained the Council’s Care Act review of his care and support needs was flawed, and it wrongly ended his direct payment as a result. We found fault in the way the Council reached its decision as it failed to properly consider Mr B’s personal circumstances and evidence available to the Council before it reached its decision. The Council will apologise to Mr B and make payment to acknowledge the distress, uncertainty and loss of care support he experienced.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained about the Council’s handling of its Care Act review of his care and support needs. He said it:
• failed to properly consider his needs and treat him with dignity;
• wrongly it decided to withdraw his support with only one week’s warning; and
• failed to inform him about the appeals process.
2. Mr B says, as a result he experienced distress and uncertainty which impacted his health. He also said he had costs to pay for care support.

Back to top

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. 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)

Back to top

How I considered this complaint

5. As part of my investigation, I have:
• considered Mr B’s complaint and the Council’s responses;
• discussed the complaint with Mr B and considered the information he provided, including several letters of support from health professionals;
• considered the Council’s response to our enquiries; and
• had regard to the relevant law, guidance and policy to the complaint.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law, guidance, and policy

Care Act Assessments

7. 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.
8. 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.
9. The threshold for eligibility is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how these impacts on their wellbeing. Council must consider whether:
• The adult’s needs arise from a physical or mental impairment or illness.
• As a result of the adult’s needs, the adult is unable to achieve 2 or more of the specified outcomes.
• As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
10. The outcomes include:
• Managing and maintaining nutrition.
• Maintaining personal hygiene.
• Managing toilet needs.
• Being appropriately clothed.
• Being able to make use of the home safely.
• Maintaining a habitable home environment.
• Developing and maintaining family or other personal relationships.
• Making use of necessary facilities or services in the local community.
• Accessing and engaging in work, training or education.
• Carrying out any caring responsibilities the adult has for a child.

Reviews

11. 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.

Council Policy

12. The Council’s policy on considering disputes about Care Act assessments changed from April 2024 following guidance from the Care Quality Commission (CQC), and its new process was published on its website in February 2024.
13. Prior to 31 March 2024, the Council’s policy was to consider disputes about Care Act assessments through its complaints process. A senior manager would review complaints about Care Act assessments, or reviews, and provide a response to complainant.
14. From April 2024, the Council will consider disputes about Care Act assessments through an appeals process. This includes acknowledging appeal requests, informal discussions on the outcomes sought, an opportunity for the complainant to provide more information, and an independent appeal panel will consider the case. The appeal process can be in writing, virtual, or in a face to face.

What happened

15. Mr B has substantial medical conditions which impacts his overall health and wellbeing. This includes mobility and balance, fatigue, and dietary requirements. He lives alone and has no friends or family providing care support.
16. In 2022 the Council assessed Mr B’s care and support needs. It found he was entitled to six hours of care support per week through a direct payment. His care plan said he needed support with:
• maintaining a habitable home environment;
• managing and maintaining nutrition;
• making use of necessary facilities or services in the community; and
• being able to use the home safely.
17. The care plan did not say Mr B had eligible needs with personal hygiene and managing medication. However, it acknowledged he had declined personal care support as he wanted to manage this independently and he was using his care support to manage his medication. His carers otherwise supported him with cleaning, laundry, preparing food and water in bulk, shopping, and collecting prescriptions.
18. In October 2023 a social worker from the Council visited Mr B to complete a review of his care and support needs. He had a friend present, but asked the Council to get a written statement from his care agency and gave consent for it to speak with health professionals involved in his care.
19. The Council decided Mr B was no longer entitled to support with his care and support needs. This was because its review found he only had one eligible need for support, which was maintaining a habitable home environment. It found he could use his car to access the community, get help from the pharmacy to prepare his medicine packs, buy pre-chopped vegetables and fruits online and use his slow cooker.
20. The Council says it sent Mr B the outcome of its assessment in December 2023, but he did not receive this. It reposted this a month later, which he subsequently received. His direct payment for care and support were set to stop in early January 2024.
21. Mr B told the Council he disagreed with its decision and asked how he could appeal. The Council told him he would need to make a complaint.

Mr B’s complaint

22. In December 2023 Mr B complained to the Council about how it had completed his care act assessment for his care and support. He said its social worker’s visit was handled poorly. This was because she arrived late despite his instructions of how to access the building, made references to having another appointment, and made an inappropriate comment regarding his friend. He said he disagreed with the outcome of the assessment because it failed to properly consider:
• he was coping only because of his existing care and support, and he had no friends or family able to support him. He explained his needs had not changed, but he had an additional condition which was being assessed;
• he needed support to manage his extensive and complex medication each week as this process was difficult and causing him pain. This process had been accepted previously and health professionals had no concerns with Mr B managing this with his carer;
• he needed support to do shopping and attend the community due to his balance and mobility difficulties. He explained online shopping was not appropriate due to his health conditions and related dietary requirement, and this helped him get out of his flat. He also said he needs support to carry and pack shopping away, and to pre-prepare food and water in bulk for the week;
• his personal care needs, which meant linen and laundry has to be washed and dried frequently. He said he had been doing part of these tasks independently, but needed support due to his balance, fatigue and issues with bending down; and
• the views of health professionals involved with his health and wellbeing. He said he would share supporting letters from these.
23. The Council agreed to continue Mr B’s existing care support funding until its complaints process had been completed.
24. In January 2024 the Council provided its response to Mr B’s complaint. It did not change its view on his case and found he only had one eligible care and support need. It explained:
• although Mr B needed support to complete some household tasks, he had been paying a contribution towards his care support, he could use this to fund the support he needed;
• his needs for support with medication could be met via his pharmacy through dosette boxes which was a safer approach. It suggested Mr B spoke with his pharmacy; and
• its social worker had visited Mr B and asked him if the Care Act review should continue as his friend was present. Its social worker had said it was not her intention to cause distress.
25. Mr B shared support letters from three different NHS specialists and his GP. Each strongly recommended the Council to reconsider its decision as Mr B had needs for support as he could not manage independently with help from carers. This included to shop for suitable food, get out of his flat, cleaning and laundry, pack shopping away, cook and manage his medicine.
26. The Council ended its direct payment to Mr B in late February 2024.
27. Mr B asked the Ombudsman to consider his complaint. He said the Council had failed to explain and follow its appeals process as set out on its website. He also shared further letters of support from a support organisation, which explained the impact the Council’s removal of support had on him, and the NHS Integrated Medicine Optimisation Service which confirmed a pharmacy cannot support Mr B with medicine packs due to his changing dosages.
28. In response to our enquiries the Council shared information about its new appeals process for Care Act assessments from April 2024 and the relevant case notes for the time it conducted its review of Mr B’s care and support needs. This shows it considered his carers comments, but no other health or medical professional were contacted.

Analysis and findings

The conduct of the Council’s social worker

29. Mr B complained about the social workers conduct and comments during her visit to Mr B’s home for the Care Act review.
30. The only evidence available regarding what happened during the visit are what Mr B said and the Council’s notes. I acknowledge Mr B feels the social worker acted and made an inappropriate comment. However, without more evidence, I cannot reach a view, even on the balance of probabilities, on whether the behaviour of the social worker was inappropriate. I cannot therefore make a finding on this point, but I note the social worker commented it was not her intention to cause Mr B any distress.

The Council’s Care Act review and decision

31. Mr B said the Council’s review was insufficient and it failed to properly consider his care and support needs.
32. I have considered how the Council conducted its review and reached its decision Mr B only has one eligible need and can manage independently without significant impact on his health or wellbeing.
33. I found fault in the process and reasoning used to reach its decision. This is because it reached its view Mr B only had eligible needs in one specified outcome without any evidence his health or medical conditions had improved, or he was more capable of completing specified outcomes.
34. In circumstances where the Council believes a service user ability to complete specified outcomes have changed, I would expect clear reasoning and for this to be based on appropriate evidence. Mr B had agreed for the Council to seek information from health professionals involved in his care, but the Council did not do so. Nor did it arrange for any other health professional to assess him.
35. The evidence Mr B provided from several health professionals and his carers shows Mr B has health conditions, care and support needs in other specified outcomes, and he will experience a significant impact on his health and wellbeing without support from his carers. There is no evidence the Council considered this during its assessment or complaints process.
36. The Council also wrongly considered Mr B could achieve several specified outcomes independently without properly considering his individual circumstances. This included:
• its incorrect view his local pharmacy could manage his medicine pack, which has since been confirmed, by the pharmacy and the NHS, is not appropriate due to his personal circumstances and changes in medicine dosage. This information would have been available to the Council had it properly considered or consulted on this;
• it found Mr B could manage and maintain nutrition, was able to use his home safely, and could make use of necessary facilities or services in the local community. While Mr B tries to be independent and can do some parts of these, the Council failed to properly consider the impact doing these tasks would have on his health and wellbeing. Including the challenges he would have with carrying, packing and storing food and water;
• it found Mr B could manage his own personal hygiene. While Mr B has been doing so and prefers to continue doing so to be independent, this does not in itself mean it is not an eligible need and it does not significantly impact his overall health and wellbeing; and
• it failed to consider how Mr B had made effort and put in place practices which may have made him more independent, but nevertheless had an impact on his overall health and wellbeing such as causing fatigue and further needs for rest. The removal of care may therefore also have had an impact on other specified outcomes such as developing and maintaining family and personal relationships and his ability to access volunteering and community services.
37. The Council’s Care Act review of Mr B’s care and support needs was therefore flawed, and it should complete a new assessment properly taking into account his personal circumstances and evidence from health and medical professionals before it reaches its view on his entitlement to care support from the Council.
38. I am satisfied Mr B experienced an injustice as a result of the Council’s flawed decision and concern his care support would end with short notice. This was:
• distress and uncertainty about how he would manage without his care support, including his concerns his views and needs had not properly been taken into account; and
• a loss of care and support when his direct payment from the Council ended in late February 2024. This loss did not start earlier as the Council agreed to continue the direct payment until it had completed the complaints process.

The complaint and the appeals process

39. The Council told Mr B how he could dispute its decision. At the time, its policy was for this to be through a complaint, and he received a response in line with the policy. This was therefore not fault, and the Council has since put in place an appeals process in line with the Care Quality Commission guidance.

Back to top

Agreed action

40. To remedy the injustice the Council caused to Mr B, the Council should, within one month of the final decision:
1. apologise in writing to Mr B, and pay him £300 to acknowledge the distress and uncertainty the Council’s faults caused him;
2. reinstate Mr B’s direct payment for his care package and reimburse him with the equivalent amount he would have received from late February 2024 until the direct payment is in payment;
3. complete a new care assessment for Mr B in line with the Care Act 2014 and the Care Act statutory guidance, and provide him with his rights of appeal if he disagrees with the Council’s decision.
41. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its Adult Social Care staff and managers conducting Care Act assessments or reviews of the requirement to properly consider service users views, their personal circumstances and relevant information from health professionals, and base its decisions on well considered and reasoned grounds in line with the Care and Support statutory guidance.
42. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

43. I have completed my investigation with a finding of fault by the Council which caused Mr B an injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman