The Ombudsman's final decision:
Summary: The Council was not at fault in its consideration of Mr X’s needs. He requested funding (through direct payments) for a health need which the Council is not legally able to support.
- The complainant, whom I shall refer to as Mr X, complains the Council delayed in carrying out a care assessment and has wrongly determined he has no eligible needs and refused to provide direct payments.
The Ombudsman’s role and powers
- 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)
- 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, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- considered the complaint and the documents provided by Mr X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- spoken to Mr X;
- sent a statement setting out my draft decision to Mr X and the Council and invited their comments;
- considered the comments received before reaching a final decision.
What I found
Care Act 2014
- Under the Care Act councils have a duty to assess adults who appear to need care and support. An adult with care needs will qualify for support if their needs assessment shows:
- the need for support is due to a physical or mental impairment, or an illness;
- the person is unable to achieve two or more of a list of specified ‘care outcomes’;
- this has a significant impact on the person’s wellbeing.
- managing and maintaining nutrition;
- being able to make use of the adult’s 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.
- Mr X says he had been asking for an assessment for direct payments for a long time before the Council agreed (Mr X says seven years but the evidence suggests it was about 18 months). Mr X had previously undertaken a programme of specific supervised exercise three times a week, which had improved his physical and mental health. This package of support, which had been funded wholly by the NHS, ended in 2015. Mr X says he wanted the Council to provide direct payments so that he could restart supervised exercise.
- The Council’s records show Mr X’s health complaints advocate contacted the Council in September 2019 to request a care assessment and advocate. The Council made referrals to advocacy services Mr X had previously used, but they were unwilling to support him.
- In October 2019 Mr X’s housing support officer contacted the Council as Mr X was concerned the Council had refused to support him or provide advocacy. A mental health social worker arranged to meet Mr X with the housing support officer to discuss an assessment.
- There are no records of this meeting, but subsequent correspondence refers to it taking place on 9 October 2019, and states Mr X agreed to his health complaints advocate also being his advocate for the assessment. The Council contacted Mr X’s preferred advocate, but they were unable to support him and Mr X declined support from their colleague.
- Mr X then identified another advocate he had been working with and who he would like to support him with the assessment. As this advocate agreed to support Mr X the Council arranged a home visit for 6 December 2019.
- The records of this visit note Mr X has daily support from a carer who received a carer allowance, and Mr X is happy with this arrangement. Mr X only wanted to discuss direct payments for specialist supervised gym sessions, which were previously funded by the NHS. The notes state
“there is no indication of social care needs that could prompt need’s assessment under Care Act 2014 at the time. However, [Mr X] could be supported under the Conversation Approach”
- The notes also state that after discussion, they agreed that going to the gym with supervision was still a health need. They agreed the social worker would contact Mr X’s GP to request a health budget to meet this need.
- Following this meeting the Council repeatedly contacted Mr X’s GP requesting support for Mr X. It also contacted NHS England for information and advice on funding this support. The Council did not receive a positive response from Mr X’s GP.
- The Council has closed Mr X’s case as specialist gym supervision is a health need. It advised Mr X his GP should be his first point of contact regarding this support.
- Mr X was unhappy with the Council’s assessment and decision not to provide direct payments and made a formal complaint.
- The Council’s letter of 14 May 2020 identified Mr X’s complaints as:
- Declining to support him with funding to attend gym sessions;
- His allocated social worker had not contacted him;
- He was unhappy with the adult social care staff he had contacted at the Council.
- The Council did not uphold Mr X’s complaint. It noted the Council had met Mr X and his advocate on 8 September and 6 December 2019, and that the assessment had not identified any social care needs. The Council was satisfied the social worker had kept Mr X and his advocate informed and that all communication was polite and professional. It said “An assessment of needs was completed via what we call the Conversation approach. The Council is satisfied with this assessment, the outcome of which is that that under the Care Act you do not have eligible needs.”
- The Council advised it could not provide Mr X with funding for therapeutic gym sessions with specialist support or therapy as it was prohibited under the Care Act to meet health needs.
- As the Council did not consider further investigation would achieve a different outcome, it confirmed this was the end of its complaints process and signposted him to the Ombudsman.
- Mr X was not satisfied by the Council’s response. He disputed the dates of the visits and said the Council had not specifically addressed his complaint that it had refused to assess him for direct payments. He complained to the Ombudsman. He said he understood he could access a personal budget via direct payments which would fund social and cultural activities outside his home. He acknowledged the sessions for which he requested funding had previously been funded by the NHS. However, he says the Council did not properly assess him and should offer a direct payment to meet his social and cultural needs outside his home.
- The Council says Mr X did not exhibit any social care needs during their meetings which would be met by funding from the Council.
- After Mr X‘s health advocate contacted the Council in September 2019, there was not a significant delay after finding an advocate he would meet in arranging an assessment.
- Mr X did not discuss his social care needs during the meetings with social care staff. The records show he only wanted to talk about his request for supervised gym sessions such as he had experienced previously. There was a general agreement this was a health need.
- Mr X’s social worker made prompt contact with Mr X’s GP who would not progress a request for health funding for the gym sessions.
- The Council responded to Mr X’s complaint explaining it could not meet a health need under the terms of the Care Act. Mr X says it did not address his request for direct payments: however, this request was purely in respect of the gym sessions, which the Council had discussed with him.
- Mr X was not assessed as having any unmet social care needs which were eligible for support through a personal budget from the Council.
- There was no fault in the way the Council assessed Mr X or considered his request for direct payments.
Investigator's decision on behalf of the Ombudsman