Summary: Ms D complains about the Council’s withdrawal of direct payments in 2015 and a care assessment in 2020. I do not intend to investigate matters dating back to 2015 as they are too long ago to be properly considered. There is no fault in the Council’s actions in 2020, it could not complete a care assessment because Ms D disengaged.

The complaint

1. The complainant who for confidentiality reasons I refer to as Ms D, is represented by an advocate who I refer to as Ms C.
2. Ms D complains the Council:-
1. inappropriately withdrew direct payments in 2015;
2. misadvised her about what she could spend direct payments on;
3. failed to carry out a care assessment properly;
4. discriminated against her because of her race.
3. Ms D says the Council wrongly accused her of misusing direct payments and she has lost trust in the Council. Ms D says she has not received the care she needs and has got into debt to privately pay for care.

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What I have investigated

4. I have investigated complaint (c) detailed above. I have not investigated the other complaints for the reasons set out below.

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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)
6. 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)
7. 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)

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How I considered this complaint

8. I read the complaint and information provided by Ms C. I spoke with Ms C about the complaint and considered further representations she made.
9. I considered the relevant law and statutory guidance including the Equality Act 2010, Care Act 2014 and the Care and Support Statutory Guidance (CSSG).
10. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

11. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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.
12. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
13. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
14. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine listed protected characteristics. One of which is race.
15. Direct discrimination occurs when a person or service provider treats another less favourably than they treat or would treat others because of a protected characteristic.

What happened

16. Ms D lives in the community and has health needs. The Council assessed Ms D as having eligible needs and provided her with a direct payment. The Council withdrew the direct payment in 2015 as it considered Ms D was not using the payments properly. Ms D disputes this. She says she followed advice from officers about how to use the direct payment and the Council should not have withdrawn the payments.
17. Since the Council has withdrawn the direct payment it has attempted to re-assess Ms D’s needs. The Council started the last assessment in June 2020. The assessment includes information from Ms D and requests to involve other professionals such as an occupational therapist. The Council did not complete the assessment as it records Ms D withdrew from the process.
18. Ms D says she has lost confidence in the Council and its ability to fairly assess her needs. She considers the Council has treated her unfairly because of her race.

Is there fault causing injustice

19. I find no fault in the way the Council has tried to assess Ms D’s needs. The Council started the assessment in line with CSSG.
20. We cannot find that an organisation has breached the Equality Act. We can find an organisation at fault for failing to take account of its duties under the Equality Act. However, Ms D does not provide any specific example of where she considers the Council has unfairly discriminated against her in the most recent assessment. I am therefore unable to pursue this further.
21. Ms D has provided information about what she feels the Council could do to support her in the assessment process. The Ombudsman cannot recommend actions without a finding of fault. I have however advised the Council of Ms D’s requests so it can consider them in future assessments. If Ms D is unhappy with the outcome of any future assessments she can make a complaint.

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Final decision

22. I have found no fault in the actions of the Council. I have completed the investigation and closed the complaint.

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Parts of the complaint that I did not investigate

23. I have not investigated the Council’s withdrawal of Ms D’s direct payments in 2015. As stated above the Ombudsman can consider complaints that fall outside the usual 12 months allowed. I have decided that while I understand Ms D’s health problems makes it difficult for her to make a complaint this is outweighed by the challenges involved in investigating the complaint. This includes:-
• the time that has elapsed, over five years;
• Ms D says officers wrongly advised her; it would be difficult to find out now what people said because of the passage of time and officers’ memory of what happened at the time.
24. In addition it appears Ms D has had access to an advocate in the past and could have made a complaint earlier.

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Investigator's decision on behalf of the Ombudsman