Summary: Miss Y complains about the Council’s failure to complete a timely assessment of her care and support needs when she moved into its area. The Council acknowledges there was delay in Miss Y’s case and has agreed to backdate her direct payments to the date she moved into the area. The Council has also agreed to apologise and make a symbolic payment of £500 for the distress this caused.

The complaint

1. Miss Y says the Council delayed in assessing her care and support needs when she moved to its area from another authority in August 2021. During the period of delay Miss Y says she suffered financial loss when she privately funded carers to meet her needs.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I contacted Miss Y and gave her the opportunity to discuss the complaint with me by telephone. I also made enquiries of the Council and considered its response which contained a proposal to resolve the complaint.
5. I issued a draft decision statement and invited comments from the Council and Miss Y. The Council confirmed its agreement to my draft decision. Miss Y did not submit any comments.

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What I found

What should happen

Social care assessments

6. 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.
7. 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.

Ordinary residence

8. Sometimes councils have to decide between themselves which organisation has to meet someone’s eligible care needs under the Care Act 2014. They do this by deciding where the person is ‘ordinarily resident’. There is no definition of ordinary residence in the Care Act. The courts have said this means where someone normally lives “as part of the regular order of [their] life, for the time being, whether of short or long duration” [Shah v London Borough of Barnet (1983)].

Direct payments

9. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
10. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. (Care and Support Statutory Guidance 2014)

What happened

11. Miss Y moved to the Council’s area in August 2021. Miss Y had received social care support in the area where she had previously lived and expected this support to continue, without interruption, after her move.
12. The previous council stopped funding Miss Y’s care and support on 8 August 2021. The Council’s assessment of Miss Y’s social care needs commenced in February 2022. In the meantime, Miss Y says she paid for private carers to help meet her support needs. She says the Council should have been meeting those needs and so the delay caused her a direct and quantifiable loss. Miss Y complained to the Council and outlined her concerns. In response, the Council:
• Apologised for the delay in responding to the complaint
• Explained the Council had many conversations with Miss Y’s previous council between May and August 2021. Initially, the Council believed that Miss Y had intended to move back to her previous area and consequently thought there was no requirement for the Council to complete an assessment.
• Said that Miss Y had not given consent for information sharing between the two council areas.
• Explained the Community Mental Health Team (CMHT) had involvement in Miss Y’s case and the Council had been awaiting the results of the CMHT assessment.
• Said Miss Y’s social care needs were being met by unpaid family and friend carers.
• Explained that some delay occurred when the allocated social worker experienced trouble when trying to contact Miss Y’s advocate.
• Confirmed the Council’s assessment concluded in May 2022, and this deemed that Miss Y required direct payments to meet her social care needs.
13. We made enquiries of the Council to ascertain when Miss Y became ordinarily resident in its area and to clarify the reasons for any delay in allocating her case and undertaking the necessary assessments. The Council’s response is set out in the following section of this statement.

My findings

14. In response to our enquiries the Council said it has considered Miss Y’s case further. Following those considerations, it has proposed a way to resolve Miss Y’s complaint without the need for further investigation. The proposal is to:
• Pay Miss Y’s direct payments to meet her assessed care needs with immediate effect and backdated to the beginning of her residency in the Council’s area (August 2021)
• Contact Miss Y with a full explanation from the social work team about the status of her case and the recent decision regarding her direct payments
• Write to Miss Y with an apology for the delays in resolving this matter and for any distress this caused
• Make a symbolic payment of £300 in recognition of the time and trouble caused by the disruption, inconvenience and distress caused by the absence of a direct payment to meet her care and support needs since August 2021.
• Undertake contract monitoring work to ensure wider improvements can be made to practices, assessment processes and communication.
15. The LGSCO can complete an investigation if we consider the Council has appropriately settled the complaint. This is because, in those circumstances, there is nothing more we could achieve.
16. I have reviewed the Council’s proposal to decide whether it is appropriate and proportionate. In my view, the injustice Miss Y experienced from the Council’s failure to assess her sooner is two-fold. Firstly, she had an actual loss from the absence of care between August 2021 and October 2022. Secondly, she experienced significant and prolonged distress from the absence of that care. There was further time and trouble caused by the Council’s delay in responding to Miss Y’s complaint
17. Having considered all the information available to me, it is my view that the decision to backdate direct payments to August 2021 is a remedy for Miss Y’s actual financial losses and I do not propose any thing further for this element of the complaint. However, the £300 suggested by the Council is less than what the LGSCO would recommend in cases like this.
18. The LGSCO’s ‘Remedies Guidance’ says that we should consider the severity and duration of a complainant’s distress when deciding upon an appropriate symbolic payment. We may also consider any aggravating circumstances, for example if the person is vulnerable. In this case, Miss Y had vulnerabilities as she is a person who has assessed social care needs. The absence of the support was prolonged because Miss Y did not receive any direct payments for over a year.
19. With this in mind, I consider a payment of £500 would be a more appropriate settlement for Miss Y’s distress, frustration time and trouble caused by the Council’s failures in this case. The Council has agreed to implement my recommendation.

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Agreed action

20. Within four weeks of my final decision the Council will provide evidence to the LGSCO to show that it has completed the following:
• Apologised in writing to Miss Y and paid £500 for the distress caused by fault;
• Contacted Miss Y to discuss her case and to explain the decision to backdate her direct payments; and
• Taken action to improve the service (assessments, communication with service users) as outlined in the Council’s proposal.

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Final decision

21. I have completed my investigation with a finding of fault causing injustice. The Council has agreed to implement the actions listed above. This is a proportionate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman