Summary: Mrs E complained on behalf of her son Mr E that the Council’s social care assessments were delayed. And the Council did not agree to their request for a reasonable adjustment. We uphold the complaint because of the delay in the assessment and in checking Mr E’s communication needs. This will have caused Mr E some distress. The Council has agreed to our recommendations to remedy this fault and to review its procedures.

The complaint

1. Mrs E complains on behalf of her son, Mr E. They complain:

• the Council’s social care assessments were delayed. It took over six months to carry out a suitable Care Act assessment that fully addressed Mr E’s needs;
• some of the assessments were not done in a way that met the communication needs of an autistic person;
• the Council refused to carry out a home visit, despite being told it was Mr E’s wish, due to his disabilities;
• a social worker acted unprofessionally during meetings in the way she carried out the assessment.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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 councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

Time

7. Unless there are good reasons, the Local Government Act says we should not investigate events which occurred over 12 months before someone complains to the Ombudsman.
8. Mrs E and Mr E complain about events going back around two years before their April 2024 complaint to us. So I need to consider if I should investigate matters from before April 2023, that is 12 months before Mrs E complained to us on Mr E’s behalf.
9. Mrs E has explained that during that time there were multiple issues she and her son were dealing with. She also had a life-threatening illness and was hospitalised.
10. The Council did not complete its Care Act assessment until October 2023 and Mrs E complained on Mr E’s behalf within 12 months of that assessment.
11. Given these circumstances, I consider there are sufficient grounds to investigate issues back to Mrs E’s March 2022 initial request for an assessment.

Alternative remedy

12. Mr E has a right to go to court if he believes the Council has discriminated against him by not making reasonable adjustments or breaching the reasonable adjustments put in place. However, we must consider if it is reasonable for Mr E to go to court. Government guidance says:

“Defending or taking a claim in court can be lengthy, expensive and draining. It can also have a damaging impact on the reputation of an organisation. It is likely to be in everyone’s interest to try to put things right before a claim is made to a court”.

13. Given the above guidance, I do not consider it reasonable to expect Mr E to take action in court. Only the courts can determine whether the Council has discriminated against Mr E. But we can decide if the Council has acted with fault in dealing with Mr E and his requests for reasonable adjustments.

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How I considered this complaint

14. I considered evidence provided by Mrs E and the Council as well as relevant law, policy and guidance.
15. Mrs E, Mr E and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

Care and support

16. 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.
17. The Care and Support Statutory Guidance says 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 and Support Statutory Guidance para 6.29)
18. The Care and Support Statutory Guidance also says, from an early stage, councils should consider whether an applicant would have substantial difficulty being involved in the assessment process, including difficulty in communication. It gives the example of those with Autistic Spectrum Disorder or Profound and Multiple Learning Disabilities. (Care and Support Statutory Guidance para 6.23)

Joint working

19. In some parts of the country, councils will ‘partner’ with NHS Trusts, so those NHS Trusts carry out Care Act assessments on behalf of the councils. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them NHS organisations can take on the provision of social work services which are normally the responsibility of councils. Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions.

Equality Act

20. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. The Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act include disability.
21. The Equality Act says, where a disabled person is put at a substantial disadvantage accessing services, compared with a non-disabled person, organisations that carry out public functions should take reasonable steps to avoid that disadvantage. These steps are often referred to as ‘reasonable adjustments’.
22. The duty is ‘anticipatory’. Within reason, this means an authority should not wait until a disabled person wants to use its services, but should think in advance about what disabled people with a range of impairments might reasonably need. The duty is owed to all potential disabled customers and not just to those known to the service provider.
23. The Equality Act has a Statutory Code of Practice (which I shall refer to as the Code). The Code says a service has to make adjustments if they are reasonable, taking account of all the circumstances of a case. It gives a non-exhaustive list of some of the factors to consider:
• the extent to which it is practicable for the service provider to take the steps;
• the financial and other costs of making the adjustment;
• the extent of any disruption which taking the steps would cause;
• the extent of the service provider’s financial and other resources;
• the amount of any resources already spent on making adjustments; and
• the availability of financial or other assistance.
24. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

What happened

25. The information below is a summary of relevant events, and does not include everything that happened during this period.

Background

26. Mr E is a young autistic adult with other conditions. He has an Education, Health and Care (EHC) Plan, due to his special educational needs. He has been home educated for many years. He lives with Mrs E, who is his main carer. A complaint about the Council’s Special Educational Needs and Disabilities (SEND) team is the subject of a separate complaint. Mr E had an advocate working with him around education issues from 2021.
27. The responsibility for Mr E’s social care needs transferred from the Council’s Children Services to its Adult Social Care (ASC) team several years ago, when he reached the age of 18. By 2022 Mr E was receiving mentoring, funded by ASC. But he had not had any direct input from any Council ASC team for some time. That meant he did not have a Council assigned social worker.
28. Mr E had been under the care of a team within a mental health NHS Trust (which I shall refer to as the ‘NHS team’). That team referred Mr E to Bristol Autism Spectrum Service (BASS), a multidisciplinary team providing diagnosis and support to autistic people. At the beginning of 2022, the NHS team discharged Mr E back to the care of his general practitioner.

The 2022 referral

29. At an end of March 2022 meeting with the Council’s SEND team, Mrs E advised the meeting her and Mr E’s circumstances had changed. So there was a need for them to re-engage with the Council’s ASC so it could provide further support to Mr E. Soon after, an officer from the SEND team sent a “reengagement referral” to ASC’s 16-25 Disability Team.
30. At the beginning of June the Council’s 16-25 Disability Team explored with BASS whether it would be better to refer Mr E to the NHS team. Mr E and Mrs E did not want a referral back to the NHS team. So the 16-25 Disability Team accepted a referral.
31. The Council’s 16-25 Disability Team’s manager spoke to an officer from its SEND team. His view was social care involvement needed to be tied in with its review of Mr E’s EHC Plan.
32. The Council’s 16-25 Disability Team allocated Mr E a social worker in mid-August. The plan was for the social worker to attend a meeting its SEND team had arranged for Mr E’s EHC Plan review. During that meeting the social worker would begin to build a relationship with Mr E before starting her assessment.
33. In the Council’s response to my enquiries, it says it made a new referral to the NHS team in August 2022. It is unclear from the contemporaneous case records of the reasons for this referral.
34. After some communications and further multi-agency meetings, the Council’s social worker visited Mr E in his home in mid-October.
35. In early November the 16-25 Disability Team referred Mr E to an advocacy agency for an advocate to work with him for his Care Act assessment. For continuity, the advocacy agency asked the advocate who was already working with Mr E to also work with him as a Care Act advocate.
36. Shortly after, Mr E’s advocate contacted the Council’s social worker to advise that Mr E would prefer her to carry out the Care Act assessment in his own home. She requested this as a reasonable adjustment under the Equality Act. The social worker responded to say the meeting needed to be in an office, due to the number of people who would be attending and a need to socially distance, due to Covid-19.
37. The Council emailed Mr E’s advocate in mid-November. The email asked the advocate to liaise with Mr E to find a convenient date to meet. In regard to the request to meet at home, the social worker noted Mr E had previously attended multi-agency meetings at the Council’s offices and had seemed comfortable there.
38. In mid-November Mr E and Mrs E attended a meeting about Mr E’s EHC Plan. The social worker did not attend, which Mrs E and Mr E raised concerns about.
39. In early December Mr E’s advocate advised the Council of Mr E’s wishes for how he wanted the Council to communicate with him, including:
• pre-meetings to create a plan; and
• support from the advocate and Mrs E.
40. After this, the Council’s 16-25 Disability Team’s manager and social worker had a telephone meeting with an officer from BASS. This noted the Council’s view it could not meet in Mrs and Mr E’s house, as it was too small a venue, given the number of people attending. It noted the BASS officer’s role was “…to ensure [Mr E’]'s Autism needs are met, in regards to any reasonable adjustments that he requires”. The BASS officer agreed to relay the information to Mr E and also confirm a meeting date.
41. In response to Mr E’s complaint, the Council said the December contact was the first time it was aware of Mr E’s communication needs.
42. On 9 December the Council wrote to Mr E inviting him to a meeting at its offices. The letter explained the Council had arranged the meeting in the office due to the number of attendees. There were further emails from later in the month both between Council teams and with Mrs E. These provided conflicting information about Mr E’s ability to leave his home. The emails also noted a postal strike might have meant Mr E delayed receiving this letter. Mr E also repeated his request for a meeting in his home. In early January 2023, the Council’s social worker emailed Mrs E. She:
• acknowledged the short notice for the meeting;
• advised it was only in December she had become aware the NHS team would be working with Mr E; and
• as that team had social workers, the Council’s team would end its involvement.
43. At the beginning of February, the Council’s Service Manager spoke with the NHS team’s manager. The NHS manager advised they were not planning any long term work with Mr E. So the Council’s team reopened Mr E’s case, so it could carry out a Care Act assessment.
44. In May 2023 a new Council social worker carried out a joint visit to the family with a social worker from the NHS team. The NHS team’s social worker advised of work she was planning with Mr E. As a result, the Council again closed its file.
45. In August, the NHS team’s social worker contacted the Council’s 16-25 Disability Team asking for support, as she had not completed a Care Act assessment (and instead had been focussing on providing mental health support). The Council agreed to re-open Mr E’s case to carry out a Care Act assessment.
46. The Council carried out an assessment in October 2023. The resulting care and support plan put in place community-based support for Mr E. The Council asked the NHS team to deliver the package of care.

Was there fault by the Council?

Reasonable adjustments - communications

47. Mr E complained the Council did not consider his communications needs. The Council says, before a December 2022 contact from Mr E’s advocate, it had not been aware of Mr E’s communication needs.
48. But the Council was not earlier aware of Mr E’s communications needs because it never asked if he needed it to make any adjustments in the way it contacted him. It was aware Mr E had disabilities. The Equality Act duty is anticipatory and the Care and Support Statutory Guidance reminds councils to consider communication needs at an early stage of an assessment. So to not ask Mr E earlier about his communications needs was fault.

Reasonable adjustments – the request for a home visit

49. Mr E had valid grounds for asking the Council to hold the Care Act assessment at his home. My task is to review how the Council considered that request. The Council records show it considered Mr E’s request. But its view was there was not enough space to hold the meeting there. It also noted the added impact of Covid-19 and that Mr E had previously attended meetings at the Council’s offices.
50. In effect the Council was saying the adjustment Mr E was requesting was not reasonable (although it does not use that language). In practice, the relevant sections of decision documents are likely to be a key component of evidence of a council’s consideration of its equalities duty. At the early stage of its consideration of the request, it had not explored Mr E’s communications needs, but it later asked BASS to liaise about this issue. So the Council has provided evidence it considered Mr E’s request and came to a decision. That means I cannot uphold this part of the complaint, as it is not the Ombudsman’s role to decide if a council breached its equalities duties.

Delay in the assessment

51. The Care and Support Statutory Guidance says a care assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs. We expect councils to complete assessments in a timescale proportionate to the complexity of the issues, and normally within six weeks.
52. Mrs E first asked the Council’s SEND Team to make a referral in March 2022, which it promptly did. The ASC team looked at the referral within a few weeks and spoke to the SEND team. That team asked for it to co-ordinate its assessment with its review of its educational support for Mr E. It was pragmatic and reasonable for the social worker to agree to this. There were further meetings, but a delay (until November) before the SEND Team arranged a meeting. I have addressed that delay in Mr E’s linked complaint about that team. But I do not find the Council’s ASC Team at fault for this period.
53. After this there were negotiations about where the assessment would take place. As noted above, Mr E had good reasons for making the request for a home visit. But the Council had reasons for not agreeing. It took some time to resolve this issue. I do not find the Council delayed for that period.
54. From January 2023 the Council’s social worker was taking steps towards completing the Care Act assessment. The Council has several records of its team contacting the NHS team and then ending its involvement. And there is evidence that part of the delay in carrying out the assessment was due to delay by the NHS team.
55. There is also evidence of other fault. For example, the Council’s ASC team made an August 2022 referral to the NHS team. But in January 2023 its social worker said she was unaware that the NHS team was working with Mr E.
56. The result of the faults was Mr E did not receive a Care Act assessment until October 2023.
57. Irrespective of which team was responsible for the delay, the duty to carry out the Care Act assessment rested with the Council. Our approach is that, when a council commissions or arranges for another organisation to provide services, we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions.
58. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. So, while here there was fault with the actions of both the Council and the NHS team we will make recommendations to the Council.
59. So I find the Council took between the beginning of January to the end of October 2023 to complete the assessment. Given we would normally expect a council to complete an assessment within six weeks, that was a delay of around seven and a half months.
60. Mrs E and Mr E also complain about the actions of the social worker at an assessment. While not dismissing those concerns, the records we have do not provide the evidence to uphold this part of the complaint.

Did the fault cause an injustice?

61. When the Council did carry out its Care Act assessment, it found Mr E to have eligible needs and it put in place a care and support plan. Although this does not definitively show Mr E would have had those needs when Mrs E first asked for an assessment, on the balance of probabilities I find that was likely the case.
62. So the key injustice to Mr E is a delay receiving the support package the Council later assessed him as needing. Not having that support in place likely caused him distress and some risk of harm.

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Agreed action

63. I recommended that, within a month of my final decision, the Council:
• apologise to Mr E. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
• make Mr E a payment of £750 to recognise the distress the delay in putting in place support will have caused him.
64. I also recommended that, within three months of my final decision, the Council’s ASC 16-25 Disability Service should review its systems and procedures to ensure it is:

• meeting its legal duties under the Equality Act, by having guidance or procedures in place for its staff to ask service users at an early stage about communications needs and whether they need any adjustments; and
• monitoring the progress of Care Act assessments when it asks third party organisations to carry out an assessment.

65. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above action.

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Final decision

66. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman