Summary: Mrs X complains about the way the Council has assessed her care needs and how it plans to meet those needs. She also complains that the Council has not made adaptations recommended by an occupational therapist. Mrs X says she does not understand what the Council says are her eligible care needs. The Ombudsman does not uphold Mrs X’s complaint because we find no evidence of fault.

The complaint

1. The complainant, who I refer to as Mrs X, complains that:
1. the Council has disregarded the fundamental principles of the Care Act 2014;
2. the assessment process was flawed, inappropriate and disproportionate, and did not properly consider her circumstances and the impact of her eligible needs on her and her family’s wellbeing;
3. she did not participate in the care and support plan;
4. the care and support plan is not fit for purpose and does not meet her eligible needs; and,
5. the Council has failed to make adaptations suggested by an occupational therapist.
2. Mrs X says the Council will not refund care she paid for that resulted from insufficient funds in her direct payment account which came about because of a reduction in the hourly rate for her personal assistant.
3. Mrs X says she does not understand what the Council has assessed her eligible needs are. She says she cannot understand the financial element of the care plan because the document is so lengthy.

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What I have investigated

4. Mrs X previously complained to the Ombudsman about similar issues. That complaint was completed in early 2018. For this reason, I will only look at issues arising from January 2018 onwards.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and additional information before I reached a final decision.
7. I have considered the relevant legislation and statutory guidance, set out below.

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What I found

The law

8. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must assess all people regardless of their finances or whether the local authority thinks an individual has eligible needs.
9. The Care and Support Statutory Guidance (regularly updated) says “while there is no defined timescale for the completion of the care and support planning process, the plan should be completed in a timely fashion, proportionate to the needs to be met” (section 10.84).
10. It also says that local authorities must ensure that they take sufficient time to make sure the plan is appropriate to meet the person’s needs, and is agreed by the person.
11. The Care Act says local authorities must meet an adult’s care and support needs if they meet certain eligibility criteria.
12. The Care Act has certain principles that run through it. These are:

• promoting wellbeing
• the importance of beginning with the assumption that the individual is best-placed to judge their own wellbeing
• considering the individual’s views, wishes, feelings and beliefs
• the importance of preventing or delaying the development of care and support needs and the importance of reducing needs that already exist
• the need to ensure that decisions are made having regard to all the individual’s circumstances
• the importance of the individual participating as fully as possible
• the importance of achieving a balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual
• the need to protect people from abuse and neglect
• the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary

13. The guidance says that the person must be genuinely involved and influential throughout the planning process. The guiding principle is that developing the care and support plan should be person-centred and person-led. The plan must detail the person’s needs that are to be met, and how those need will be met. The plan must also be proportionate to the needs.
14. If a person’s needs fluctuate, the plan should accommodate this and say what contingencies are in place in the event of a sudden change or emergency. A local authority must tell the person which of their needs may be met by direct payments.
15. The guidance says that when determining how to meet a person’s needs, a local authority may also consider its own finances and budgetary position.
16. The guidance says a local authority must take all reasonable steps to agree a plan with the person before it signs off the plan. If the person does not agree to the plan, and the authority feels it has taken all reasonable steps to address the situation, it should direct the person to the local complaints procedure.

What happened

17. Mrs X has multiple sclerosis. Mrs X’s husband, Mr X, provides some care for her. Because of Mrs X’s health needs, the Council is involved with care and support planning. Mrs X receives direct payments. From this, she pays for a personal assistant to support her.
18. Mrs X asked the Council to make adaptations to her property because of her care needs. She was assessed by an occupational therapist in May 2017. The occupational therapist recommended installing a wet room.
19. In January 2018, an occupational therapist and a senior occupational therapist from the Council met with Mrs X to discuss adaptations. An occupational therapist completed a second report, called a Major Adaptation Report.
20. In April, the Council wrote to Mrs X to arrange a re-assessment of her needs to move forward with support planning. It did this because the previous Ombudsman complaint (referred to in paragraph four) had been completed.
21. In June, Mrs X complained to the Council (complaint one). She complained that the Council refused to increase the hourly rate for her direct payments for the hours her personal assistant worked in 2017/18.
22. Later in June, the Council completed two more Major Adaptation Reports.
23. In July, Mrs X sent the Council self-assessments for herself and Mr X as her carer. The Council replied, asking for more information.
24. Also in July, Mrs X sent the Council another complaint (complaint two). She wanted air conditioning because of the impact of heat on her condition. She said this had been recommended by an occupational therapist in 2010.
25. Later in July, the Council sent Mrs X its response to complaint one. It said that it had been agreed that no changes would be implemented until the complaint with the Ombudsman had completed. It said now this had finished, the Council wanted to work with her. It said it needed to complete the assessment process before it could agree to increase the weekly direct payment amount.
26. On the same day, the Council sent Mrs X a draft assessment. It included suggestions to promote her independence and prevent the need for her to rely on paid support. It asked for more information about her specific needs.
27. A few days later, Mrs X told the Council she was unhappy with its response to complaint one.
28. In August, the Council sent Mrs X its response to complaint two. It said it understood that her request related to her fatigue and the impact of heat. It explained that fatigue is considered a health need, not a social care need, and this is why the social care department would not fund air conditioning.
29. The Council said that despite this, it would present Mrs X’s case to the discretionary top up panel to decide whether or not it would allocate funding for this.
30. At the end of August, the Council sent Mrs X an additional response to complaint one. It said the Council wanted to agree Mrs X’s care and support needs with her. It said it needed to understand what her social care needs are, and what level and frequency of support she needs. It said it could only discuss her support plan once it had that information.
31. The Council said her complaint was closed and signposted her to the Ombudsman.
32. In September, Mrs X and her advocate met with the Council to discuss her care and support needs and how to meet them.
33. A few days later, the Council emailed Mrs X explaining why it could not agree to some of her requests. It proposed a care and support plan it felt would meet Mrs X’s needs.
34. In October, the Council emailed Mrs X asking her to confirm if she was happy with the assessment. Mrs X replied saying she had a lot of comments to make on the proposed plan.
35. The Council replied the next day, saying it felt the assessment was a fair and accurate reflection of Mrs X’s current needs. It recognised that her needs fluctuate. It said the proposed plan can meet her current needs.
36. On the same day, Mrs X complained to the Council (complaint three). She said the Council’s deadline to reduce her direct payments (in mid-October) was unreasonable. She asked for an extension to the end of 2018.
37. In October, the Council decided to implement the care and support plan without Mrs X’s agreement. It sent her a copy of the plan.
38. At the end of October, the Council sent Mrs X its response to complaint three. It said it made her aware it would reduce her direct payment amount once it had completed her assessment. It said it agreed not to adjust this payment while the Ombudsman complaint was ongoing.
39. The Council said it had agreed an extension to mid-November, and would extend the deadline once more until mid-December. After this, the direct payment amount would be reduced.
40. In November, the Council completed the fifth Major Adaptation Report.
41. At the end of November, Mrs X complained to the Council (complaint four).
42. In December, the Council’s Major Adaptations Panel discussed Mrs X’s case. The panel agreed to fund Mrs X’s wet room and a step outside her front door. It decided it would not fund air conditioning or kitchen adaptations. The Council prepared a sixth Major Adaptation Report for this panel.
43. The Council wrote to Mrs X to tell her the outcome of the panel. It explained the reasons for the panel’s decisions. It suggested alternatives. It asked her to give her consent, if she was happy, so the Council could proceed with the agreed adaptations.
44. At the end of December, the Council sent its response to complaint four. It said both Mrs X’s and Mr X’s assessments were in line with the Care Act. It said it applied the principles of the Care Act to its involvement with the whole family, including their two children, and its consideration of the whole family’s wellbeing.
45. The Council said it had adequately assessed Mrs X’s and Mr X’s eligible needs. It said it had attempted to engage with Mrs X fully to review her eligible care needs and level of care. It said there had been a significant amount of communication. It said it was satisfied that the whole family had been given sufficient opportunity to participate in the support planning process.
46. The Council said Mrs X did not agree with the level and nature of the support funded by the Council. It said the direct payments in place provide funding for the level of care it assessed Mrs X needed. It said the ongoing review process would consider any changes in need.
47. The Council explained that it would not amend the level of support it provided, and the amount of direct payments would not change. It said there was an ongoing annual payment for 52 hours of additional support for attending certain appointments.
48. The Council said it had also made a one-off payment for 50 hours of support to be set aside as a contingency should Mrs X experience a decline in her health. This would be reviewed regularly or when there is a change in need.
49. Mrs X had requested that funding for an assistance dog be included in the plan. The Council said it could not commit to funding this until the impact of it is fully assessed. It said if Mrs X decided to go ahead with it, the Council would discuss it with her.
50. Mrs X had requested that the cost of pilates classes were included in the plan. The Council said that the direct payment provided funding for Mrs X’s personal assistant to support Mrs X to access the classes. It said it would not fund the cost of the classes. It said requests for funding for therapies should go to Mrs X’s doctor.
51. In February 2019, Mrs X responded to the Council’s request for her consent to start adaptations. She did not say that she agreed, and she did not send a signed copy of the report back to the Council.
52. In March, the Council sent Mrs X a letter about complaint three. It said it had not heard from her, and had waited until now to give her time to consider if she wanted to discuss it further. It said it now treated this complaint as closed, and signposted her to the Ombudsman.
53. In April, the Council sent Mrs X an updated Major Adaptation Report to sign and return so the adaptations could start. This contained only what was agreed at the panel, which was funding for the wet room and the step outside the front door.
54. Mrs X replied, saying she had concerns about what was presented to the panel.
55. The Council replied, telling her what was presented to the panel and clarifying the reasons for the decisions.

Analysis

Principles of the Care Act 2014

56. Mrs X complains that the Council has disregarded the fundamental principles of the Care Act 2014 (part a of the complaint).
57. Paragraph 12 outlines the principles of the Care Act. I find that the Council’s assessment and care and support plan promote Mrs X’s and her family’s wellbeing.
58. The Council used Mrs X’s and Mr X’s self-assessments as the basis for the care and support planning process. This shows that the Council started the process by using Mr and Mrs X’s judgement about their own wellbeing. This is in line with the guidance.
59. The Council says that it listened to Mrs X and considered her views, wishes and feelings. However, it says that there are differences between what Mrs X thinks the Council should provide because it is what she wants, and what the Council has a duty to provide to meet her assessed level of need. I find that Mrs X’s plan considered her views, wishes, feelings and beliefs.
60. The Council says Mrs X has had input from different teams within the Council who have suggested, and offered to provide, various techniques and equipment to prevent or delay the need for care and to reduce her existing care needs. It says Mrs X has declined or disengaged from the majority of these suggestions.
61. The Council says Mrs X has instead insisted that the only way to meet her need is for the Council to fund certain services that it does not have a duty to provide.
62. I find that the Council has had regard for the principle of preventing and reducing care needs. The fact that Mrs X has declined or disengaged from services is not evidence of fault with the Council.
63. The Council says that the care and support plan, along with input from the rest of the family as part of everyday family life, is sufficient to prevent abuse and neglect.
64. Having considered the content of the plan and the support being provided to Mrs X, I agree with the Council on this point. This is in line with the guidance.
65. I find that the Council has fully considered the principles of the Care Act. For this reason, I do not find fault with the Council.
66. Other principles of the Care Act - to ensure that decisions are made having regard to all the individual’s circumstances, the importance of achieving a balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual, and the importance of the individual participating as fully as possible – are covered below, in parts b and c of the complaint.

The assessment process and consideration of the impact of needs on the family’s wellbeing

67. Mrs X complains that the assessment process was flawed, inappropriate and disproportionate, and did not properly consider her circumstances and the impact of her eligible needs on her and her family’s wellbeing (part b of the complaint).
68. I find that the assessment and plan have had regard to all of the family’s circumstances. I find that the Council considered all the information Mrs X provided. It assessed Mr X as a carer and assessed the children to see if they should be considered young carers (they were not deemed to be young carers because they did not provide Mrs X care or support).
69. Mrs X says the Council did not consider the impact of heat on her fatigue. She says the Council does not recognise that her condition fluctuates.
70. I find that the Council has considered the impact of heat on Mrs X’s condition. It has made suggestions about this in the assessment. The plan also notes Mrs X’s fluctuations and fatigue. It outlines how to manage this risk.
71. The Council put in place additional support hours to reflect that Mrs X’s condition fluctuates. While the contingency is said to be in case of a decline in Mrs X’s health, I do not consider there is a difference between fluctuation and decline: the end result is the same. If Mrs X needs more support because of her condition, the plan has a contingency to make sure she is supported through it.
72. One of the Care Act principles is about achieving a balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual.
73. I find that Mr X’s carer’s assessment and the plan put in place for him consider his needs. There is provision to make sure he has a break from his role as a carer. This shows that the Council considered the impact of Mrs X’s needs on the family’s wellbeing.
74. I find that the assessment process was appropriate, proportionate and not flawed. I also find that the process was done in line with the guidance.
75. For these reasons, I do not find fault with the Council for the way it assessed Mrs X’s needs and the impact of those needs on the family.

Participation in the planning process

76. Mrs X complains that she did not participate in the care and support plan (part c of the complaint).
77. The Council says it has assessed Mrs X’s needs over three years. During this time it says she had every opportunity to contribute to, and comment on, numerous draft assessments. It says each assessment contains Mrs X’s own words.
78. The Council says that it has made every effort to make sure Mrs X was at the centre and led the process.
79. The guidance is clear that developing the care and support plan should be person-centred and person-led. The evidence shows that Mrs X was involved in the process throughout. The Council met with Mrs X, sent her numerous draft assessments, and took into consideration all of her requests, views, wishes and feelings.
80. I find that Mrs X was not only involved in the care and support planning process, but that she was at the centre of it, in line with the guidance. The fact that Mrs X disagrees with the plan is not evidence of fault.
81. For these reasons, I do not find fault with the Council.

The care and support plan

82. Mrs X complains that the care and support plan is not fit for purpose and does not meet her eligible needs (part d of the complaint).
83. Mrs X says the plan does not reflect her wishes and views. Mrs X wants the plan to include the cost of pilates classes, the cost of gym membership, the cost of an assistance dog, the cost of online shopping, and a higher hourly rate for her personal assistant.
84. The Council says the plan meets Mrs X’s assessed eligible care needs. It says that Mrs X’s wishes for support services are disproportionate to her level of need and are outside what the Council will support.
85. The Council says it has offered Mrs X many alternative solutions to achieve her identified outcomes, but she has consistently turned these down in favour of services that go above her assessed level of need.
86. The Council funds 20 hours of personal assistant support each week. Some of these hours are to support Mrs X to access pilates classes and the gym. However, the Council expects people to fund the cost of the activities themselves. This is proportionate and appropriate.
87. The Council has discussed the cost of an assistance dog and online shopping costs with Mrs X. It said that it would discuss the cost of the dog nearer the time. This is appropriate, given that Mrs X says she is on a waiting list for a dog and does not know when she might get one. The Council said, about the online shopping costs, that it would consider these, but suggested free or much lower cost alternatives to the one Mrs X prefers. This is not fault.
88. The Council has reduced the hourly rate for Mrs X’s personal assistant so it is in line with the average cost of a local registered care agency. It has calculated the hourly rate appropriately. I do not find the Council at fault for this.
89. I find that the support plan meets Mrs X’s assessed eligible care needs and is in line with the guidance. For this reason, I do not find fault with the Council.
90. Mrs X complains that she did not agree to the plan.
91. The assessment process started in 2016. The Council signed off the plan in October 2018, having given Mrs X many opportunities to comment on the plan. The Council took her comments on board. It decided to implement the plan without Mrs X’s agreement. The Council feels the plan is more than adequate to meet Mrs X’s needs.
92. The Ombudsman would criticise a council for allowing the assessment process to continue indefinitely, and for failing to sign off a plan. In this case, I find that the Council took an appropriate length of time to assess Mrs X’s needs.
93. I also find that it was appropriate for the Council to sign off the plan, even though it did so without Mrs X’s agreement. The Council’s actions were in line with the guidance. For this reason, I do not find the Council at fault.
94. Mrs X says she does not understand what the Council has assessed are her eligible needs. These are clearly stated in the plan.
95. Mrs X says she cannot understand the financial element of the plan because the document is too lengthy. This is not evidence of fault.

Adaptations

96. Mrs X complains that the Council has failed to make adaptations suggested by an occupational therapist (part e of the complaint).
97. In April 2019, the Council sent Mrs X an updated Major Adaptation Report (occupational therapy report) to sign and return so the adaptations could start. The Council says that Mrs X has not sent back a signed copy of the report.
98. The Council has been clear that it cannot start adaptations until Mrs X returns this signed report.
99. I find that the delay is due to Mrs X not returning the signed report. For this reason, I do not find fault with the Council.

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Final decision

100. I have completed my investigation. I do not uphold Mrs X’s complaint because I find no evidence of fault with the Council.

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Investigator's decision on behalf of the Ombudsman