Kirklees Metropolitan Borough Council (18 011 052)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 20 May 2019

The Ombudsman's final decision:

Summary: Miss X complains the Council failed to assess her needs properly in March 2018, resulting in a significant cut in her personal budget. When the Council identified changes in her circumstances it should have done a needs assessment. The failure to do so means it is unclear whether it is providing enough help to meet her eligible care needs. The Council should do a needs assessment and take action to make sure it does them when necessary in future.

The complaint

  1. The complainant, whom I shall refer to as Miss X, complains the Council failed to assess her needs properly in March 2018, resulting in a significant cut in her personal budget.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have:
    • considered the complaint and the documents provided by Miss X’s Solicitor;
    • considered the comments and documents the Council has provided in response to my enquiries; and
    • shared a draft of this statement with Miss X’s Solicitor and the Council, and invited comments for me to consider before making my final decision.

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What I found

  1. Miss X has a genetic disorder which affects her ability to do things for herself. She is registered blind. The Council reviewed her needs in September 2017 after her previous care arrangement broke down. Miss X had been using her personal budget (£766.50 a week) to employ a live-in carer to provide 24-hour support and supervision. The review says all Miss X’s outcomes had been met. Miss X reluctantly agreed to a referral to the Community Rehab Team to help increase her independence. The assessor noted increasing her independence was one of the outcomes Miss X wanted. The assessor suggested using a carephone as an alternative to a Personal Assistant (PA) staying overnight. But Miss X did not want one. They also discussed other ways Miss X might increase her independence, such as undertaking small tasks under supervision of a PA. The review says Miss X’s case would be reviewed again in 12 months.
  2. At the review meeting the Council agreed a care and support plan with Miss X. This says:
    • she needs 24-hour support and supervision provided by a live-in carer so she can continue to live in her own home;
    • the live-in carer will meet Miss X’s need for help with: personal care; meal preparation; medication; domestic work; attending appointments and social activities; and shopping;
    • PAs will supervise Miss X to do some domestic work herself;
    • her family will help when the live-in carer takes a two-hour break;
    • they would review the care and support plan on 1 March 2019.
  3. The Council started to review Miss X’s needs again in February 2018. It visited her on 26 February and noted Miss X:
    • is independent with transfers;
    • needs support with mobility “minimal guidance of one person in open spaces”, is independent upstairs, but would benefit from a second rail on the stairs;
    • is independent using the toilet at night and in the morning; and
    • needs help from one person to use the bath.

The review says Miss X’s father declined safety rails.

  1. The Council visited again on 12 March. Miss X said her vision was much the same as before a hospital admission in 2017 but her walking had improved. The assessor noted Miss X could walk independently into the kitchen using the walls/doors for guidance. Miss X found most of the things she needed and had strategies to make a hot drink. The assessor helped her poor the kettle, as she was at risk of scalding. The review says what had changed since September 2017. Miss X said she had no problems sleeping and did not get up during the night. They discussed ways of removing night-time PA support, but Miss X and her father did not want to accept this. They discussed using a carephone, but Miss X’s father had concerns about response times. They discussed Miss X’s routines and the help provided by her PAs:
    • washing – largely independent apart from with bathing and hair washing;
    • toileting – independent but needs help with occasional incontinence;
    • activities outside the home – Miss X said her PA helps for eight hours a week.
  2. The Council told Miss X shopping, cleaning and laundry would no longer be part of a funded care package.
  3. They discussed reducing Miss X’s personal budget to £415.80 a week to pay for 36 hours of care (four hour-long calls a day plus eight hours of support to go out each week). Miss X’s father said he would appeal the decision. The Council produced a care and support plan based on a personal budget of £415.80 a week. The plan identifies these needs and “interventions”:
    • communication – PAs and family to help with reading written communications;
    • continence – PAs to help with occasional incontinence;
    • finances – Miss X’s father to help with finances and a company to manage her direct payment account;
    • housework – Miss X to employ a private carer;
    • social – eight hours of support from a PA;
    • meals – one hour of PA support at breakfast, lunch and tea to prepare meals and encourage Miss X to do what she can;
    • medical appointments – to contact the NHS for help if this is needed;
    • medication care – help would be needed if prescribed medication;
    • mental health – Miss X said having a PA with her all the time prevents her from becoming anxious;
    • mobility – equipment offered but not accepted;
    • personal assistant – eight hours to employ a PA for “social hours”;
    • hygiene and dignity – PA to provide support, while maintaining independence;
    • shopping – using benefits to employ a PA to take Miss X shopping, use an agency or order food online;
    • equipment – offered but declined;
    • accommodation – Miss X rents a property from her brother;
    • laundry – PA to encourage Miss X to do what she can, use benefits to buy help from a PA or a care agency.
  4. In June Miss X’s Solicitor complained to the Council about the decision to reduce her personal budget from £766.50 to £415.80 a week. While accepting her needs had reduced, he said it was not right to say she needed no help with medication, mental health or personal care. He said her need for help with communication, continence, housework, meals, medical appointments and mobility remained unchanged.
  5. The Council first responded on 30 July. Following a further letter from the Solicitor, the Council sent its final response on 14 November. This says:
    • it was reasonable to review Miss X’s care and support plan within six months;
    • it was important to focus on Miss X’s outcomes, rather than the direct payment;
    • Miss X’s need for help with communication and medication had not changed but the Council had proposed alternative ways of meeting the needs;
    • an Occupational Therapist’s assessments had confirmed the current level of support met the need for help with mobility and personal care;
    • the Council’s offer of rails and a commode had been declined;
    • it would discuss further the impact of housework and cleaning on Miss X;
    • financial pressures meant it had to consider other ways of supporting people, such as assistive technology rather than personal visits;
    • it did not consider an Occupational Therapist report commissioned by Miss X to be independent; and
    • it could do a less detailed review as the dispute appeared to be over how to meet needs, rather than what Miss X’s needs are.

Is there evidence of fault by the Council which caused injustice?

  1. I cannot find fault with the Council for reviewing Miss X’s needs again within six months. Although her September 2017 care and support plan says they would review her needs again in March 2019, it seems clear that was a mistake and it should have said March 2018. Having made changes to a care and support plan and identified the potential for increased independence, there was nothing wrong with reviewing Miss X’s needs within six months.
  2. The Department of Health’s Care and Support Statutory Guidance (Statutory Guidance) includes guidance on reviewing care and support plans. It says:
    • “The revision should wherever possible follow the process used in the assessment and care planning stages. Indeed, the local authority must if satisfied that the circumstances have changed in a way that affects a care and support or support plan, carry out a needs or carer’s assessment and financial assessment, and then revise the plan and personal budget accordingly. The assessment process following a review should not start from the beginning of the process but pick up from what is already known about the person and should be proportionate.”
  3. In March 2018 the Council satisfied itself that changes in Miss X’s circumstances had implications for her care and support plan. Within that context the Council should have done a needs assessment, before changing the care and support plan. But it did not do so. That was fault by the Council.
  4. The Statutory Guidance says the needs assessment should not start from the beginning of the process but pick up from what is already known and should be proportionate. This means it can take the form of an update of the previous assessment. However, a needs assessment must include two elements, an assessment of the adult’s need for help achieving the outcomes and a decision on eligibility. The failure to do a needs assessment for Miss X means it is no longer clear what her eligible care needs are.
  5. To have eligible care needs all the following must apply:
      1. the needs must arise from or be related to a physical or mental impairment or illness;
      2. because of the needs, the adult must be unable to achieve two or more of these "outcomes”:
  • 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;
  • accessing and engaging in work, training, education or volunteering;
  • making use of necessary facilities or services in the local community including public transport, and recreational facilities or services;
  • carrying out caring responsibilities for a child; and
      1. because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.
  1. The Statutory Guidance also says a care and support plan must include the needs identified by the assessment and “whether, and to what extent, the needs meet the eligibility criteria”. Miss X’s care and support plan does not address the eligibility criteria. That is fault by the Council. In particular, it is not clear why the need for help with housework and laundry are ones which she should use her own resources to address.
  2. As it stands, there is not enough evidence for me to say the Council is not providing enough support to meet Miss X’s eligible care needs. This is because:
    • the Council has not clearly identified what those needs are; and
    • it is clear from the 2018 review that Miss X’s independence has increased since the 2017 review.
  3. The Council needs to remedy the injustice to Miss X by apologising and doing a needs assessment. It also needs to take action to ensure it properly complies with the requirements of Statutory Guidance in future.

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Agreed action

  1. I recommended the Council:
      1. within four weeks writes to Miss X apologising for its failings;
      2. within six weeks does a needs assessment for Miss X, and updates her care and support plan;
      3. within eight weeks identifies the action it needs to take to ensure:
        1. it does a needs assessment when it identifies changes to someone’s circumstances which require changes to a care and support plan; and
        2. care and support plans say “whether, and to what extent, the needs meet the eligibility criteria”.

The Council has agreed to do this.

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Final decision

  1. I have completed my investigation, as the Council has agreed to remedy the injustice it has caused.

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Investigator's decision on behalf of the Ombudsman

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