Summary: Mr X complained the Council failed to make appropriate arrangements to meet his assessed care and support needs. He says he was discriminated against as a gay man causing considerable distress and frustration. The Council was at fault because his direct payment took too long to arrange and the remedy offered to Mr X was inadequate. The Council has agreed to make an additional payment to Mr X to cover his private care costs. The Ombudsman did not find fault in the other areas of complaint.

The complaint

1. Mr X complains about his care assessment and support plan. In particular, he complains about:

1. possible institutional homophobia, evidenced by its lack of available, suitable care providers.
2. failure to provide adequate support to meet his needs.
3. delay setting up his direct payment.
4. failure by Mr X's ward councillor to progress his complaint as promised.

2. He says this has caused avoidable distress, frustration and a detrimental impact of his mental health.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. As part of my investigation I have:

• considered the complaint and documents provided by Mr X;
• made enquiries of the Council and considered its response;
• considered the relevant law and statutory guidance - Care Act 2014 (“the Act”) and the Care and Support Statutory Guidance (“the Guidance”);
• spoken to Mr X; and
• sent a draft version of this final decision to both parties and invited comments on it.

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What I found

Legal background

Assessment of care and support needs

7. The Act requires 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 Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
8. Where councils have determined that a person has needs which are eligible for support, they must meet those needs. Councils must provide a care and support plan which sets out what the person’s needs are and how these will be met.

Personal budgets

9. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan.
10. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan.

Direct payments

11. A council can make cash payments to a person to allow them to buy and arrange the care support they need themselves. This is called a direct payment.

The Wellbeing Principle

12. The Act and Guidance place a duty on councils to promote wellbeing when carrying out care and support functions in respect of a person. This includes having regard to the individual’s views, wishes, feelings and beliefs.

What happened

13. I have set out below a summary of the key events. But it is not meant to show everything that happened.
14. In late 2018, Mr X contacted the Council to request an assessment of his social care needs. He had a number of chronic health conditions and was struggling to maintain his independence at home without some help.
15. On 21 January 2019, a social care assistant (Officer J) carried out an assessment of his care needs. Mr X was assessed as being eligible to receive a service. Mr X said that as he is gay, he would prefer to receive care from a member of the LGBT+ community. Officer J agreed to look into this for him.
16. Officer J also suggested a direct payment would be the best way for Mr X to arrange his care because he said he would like some flexibility over when he received support.
17. About three weeks later, having made enquiries, Officer J told Mr X there were no care agencies operating in the Council’s area with solely LGBT+ carers. Mr X was also told the plan had changed because Officer J’s manager had reviewed her assessment. The manager suggested that Mr X should receive a reablement service before a care package. This was to “maximise his independence, safety and well-being”.
18. Mr X says he was both disappointed and surprised by this outcome. It was the first he had been told about reablement and he did not consider he would benefit from this service. He had carried out his own research and identified a specialist LGBT+ care agency (Agency B) that said it could provide a service to Mr X.
19. Mr X complained about his situation to his local ward councillor (Councillor D). Councillor D replied saying, “I will see what I can find out. In the meantime appeal the decision”. Mr X asked Officer J to review his case.
20. Officer J provided Mr X with a written explanation about why Mr X would benefit from reablement.
21. About a week later, Mr X was told the Council had agreed to fund a package of care via a direct payment. Reablement was not mentioned.
22. Despite finding a possible suitable provider, the Council took some time setting up the direct payment and carrying out a financial assessment. There was additional delay because Agency B increased its hourly rate. Mr X received his first direct payment in May 2019.
23. Agency B started providing care to Mr X in June 2019. However, Mr X told the Council his health had recently deteriorated, particularly since a recent fall whilst out in the community. He asked the Council for more support, particularly when he went out. In response the Council said it would have to carry out a reassessment. This took place in July 2019 but due to Officer J leaving her job, the outcome of the assessment was not communicated to Mr X.
24. In September 2019, frustrated by feeling he was not being listened to or being provided with enough support, he lodged a formal complaint.
25. In response the Council accepted there was fault in the following areas:
1. Delay in carrying out the financial assessment which in turn caused a delay in service provision.
2. Failure to notify Mr X of the of outcome the reassessment that took place in July 2019.
3. Failure to implement the changes to the support plan following the July 2019 reassessment. This meant the direct payment was not increased on time and there was a temporary shortfall in his direct payment account.
4. Inappropriate referral to the reablement service.
26. The outcome of the reassessment was that Mr X was eligible to three extra support hours per week to meet an additional assessed need to access the community. This was not agreed until October 2019 and not communicated to Mr X until the following month. The increase in his direct payment was not actioned and backdated until January 2020.
27. Mr X said an extra three hours was inadequate. He wanted someone to support him to go swimming and one hour per week was not enough to cover the time it actually took. As Officer J was no longer assigned to his case, Mr X was finding it difficult to discuss this issue with anyone at the Council, despite his case being assigned to a different worker.
28. Mr X says he felt discriminated against as a gay man, made worse by the delay he experienced. The Council said the lack of suitable care providers was not due to fault by the Council, rather the failure by the home care market to respond to the needs of the LGBT+ community through the creation of specialist agencies. Agency B advertised itself as the only specialist LGBT+ care provider in the UK.
29. While it did not make a finding of fault about this, the Council said “it was mindful that you (Mr X) were left with a strong sense that your individual needs as a gay man were being disregarded. I can understand why you were left with that impression”
30. Overall, the Council upheld his complaint. The Council offered Mr X £250 “for the impact of the delays”. A number of service improvements and actions were also identified.
31. Mr X declined this offer of compensation and brought his complaint to the Ombudsman. As well as being dissatisfied with the outcome, he said the Council had failed to address his complaint about the inadequacy of his care package. He was also dissatisfied with failure to provide any information about the complaint he made to Councillor D in February 2019.

Analysis

32. The Council has accepted there has been some fault in the way it handled this case. It has apologised, offered a compensatory payment to Mr X and identified a number of service improvements to prevent a recurrence in other cases.
33. Mr X says this does not remedy the injustice caused to him. Nor did the Council’s complaint response address all the matters he complained about.
34. It is not the role of the Ombudsman to reinvestigate matters where a complaint has been upheld unless the outcome does not remedy the injustice, or it is in the wider public interest to do so.
35. I have carefully considered the responses provided by the Council to both Mr X’s complaint and the Ombudsman’s enquiries. I am satisfied it has accepted fault in the areas I have outlined in paragraph 25 above. What I must consider is whether there were any additional areas of fault and whether the remedy offered so far is adequate. I will deal with each of these matters in turn.

Lack of specialist LGBT+ support

36. Mr X feels the Council failed in its duty to him as a gay man because of the time and effort it took to source suitable care.
37. The Council, whilst accepting it took too long to arrange, said this was not because of institutional homophobia (as claimed by Mr X). Rather it was a case of the, “local home care market has so far not responded to the needs of gay men and other members of the LGBT+ community through the creation of specialist agencies, presumably because they perceive the client base to be small”. The Act requires councils to have “due regard” to an individual’s views, wishes, feelings and beliefs. However, this does not mean the Council has to provide everything the individual asks for.
38. The case notes show that soon after her assessment, Officer J contacted an LGBT+ carers project who said they would send details of another agency via email. Officer J asked Mr X to help with the search. Mr X initially identified Agency B but it took a number of months for the necessary arrangements to be made.
39. I am satisfied Officer J had “due regard” to Mr X’s wishes and feelings. She made enquiries quickly and was keen for a suitable provider to be found. The problem arose because there were no specialist providers other than Agency B.
40. But rather than explain this properly to Mr X and work with him to try and identify a solution to the problem, the Council allowed the situation to drift. And so, for several months, Mr X was left struggling to manage.
41. The Council has denied the allegation of institutional homophobia. My investigation has not found any evidence to support such a claim. I am therefore unable to make a finding on this specific issue.
42. But there was a significant delay in making the arrangements that the Council has already accepted should not have happened. There was also a failure to properly explain the process to Mr X. But I am satisfied this was not symptomatic of institutional homophobia. Instead it would seem to be the case that Officer J and others were dealing with this specific request for the first time.
43. To the Council’s credit it has acknowledged that Mr X was left with the impression that his individual needs as a gay man were disregarded. He was offered an unreserved apology for any frustration and emotional distress that he experienced.
44. In addition to this apology the senior officer who dealt with his complaint has raised the matter with its commissioning team and distributed details of Agency B to its assessment staff.
45. I am satisfied with this as an outcome and can add nothing more to what the Council has already done.

Failure to offer adequate support

46. Mr X wanted a carer to assist him with a regular trip to the swimming baths. The Council’s support plan provided him with one hour per week to meet his assessed need of accessing the community. Mr X said this was not enough.
47. In response to the Ombudsman’s enquiry about this, the Council said Mr X could use his direct payment flexibly to meet his needs in whatever way he wants. He could also supplement Council-funded support with his own money to pay for extra care
48. It is not the Ombudsman’s role to say what a person’s needs are, or what services they should receive. The Ombudsman’s role is to consider if a Council has followed the correct process to assess a person’s needs. In doing so we look at what information the Council considered. If a Council considers all this information properly, the Ombudsman cannot find a Council at fault just because a service user disagrees with its decision, or outcome of an assessment.
49. If a person has eligible needs, councils have a legal duty to meet them. This does not mean a Council must meet a person’s wants. Wants and needs are different. This is sometimes a tricky area, because service users and Councils may disagree about what is a want and what is a need.
50. In this case the Council assessed he had an eligible need to access the community and its resource allocation tool determined the level of support would be one hour per week. It is up to Mr X to determine how he wants to use this time. But the Council is not obliged to fund as many hours as a person decides they want to do a particular activity. Nor is it the role of the Ombudsman to specify how a person’s eligible needs should be met. This is the role of the Council.
51. The records I have seen, including the July 2019 care assessment and resulting support plan show me that Council properly assessed his care needs and determined how much support he was entitled to. I accept Mr X disagrees with this outcome but in the absence of fault in the way the decision was made, the Ombudsman cannot criticise the outcome.

Councillor D complaint

52. Mr X remains unhappy that the Council has been unable to provide any information about what happened as a result of his complaint to Councillor D in February 2020. He does not know whether Councillor D was notified of the outcome of his complaint.
53. Mr X first raised his concerns with his local ward councillor, Councillor D, in February 2019. His main issue at the time was the proposal that Mr X should receive a reablement service. Mr X also expressed surprise by the lack of LGBT+ carers, but was supportive of Officer J herself. Councillor D replied saying he “will see what I can find out”. He suggested appealing the decision about reablement which Mr X did straight away via Officer J.
54. Officer J replied to the issues raised and explained the rationale behind reablement and confirmed the lack of LGBT+ carers but said the Council would “do our very best to try and source an appropriate carer for you”.
55. There is no evidence that Councillor D was informed of the outcome. In the Council’s complaint response, the senior officer said he would liaise with the relevant personnel to see if there was any outstanding correspondence on record. He contacted Councillor D directly in January 2020. There was no record of Councillor D raising the issue with the social services department.
56. It is clear that Mr X was frustrated by an apparent lack of communication between Councilor D and the social services department. His original complaint to him was mainly about the reablement proposal and this was relatively quickly resolved when Mr X appealed against this decision.
57. Councillor D told Mr X that he “will see what he can find out”. There is no evidence this happened. On the balance of probabilities, I believe it is fair to conclude it did not. While I consider this was a shortcoming by the Council, I do not consider that it was so serious as to make a formal finding of fault, particularly as the Council has already taken appropriate action by apologising to Mr X for Councillor D not being updated. I consider this to be a suitable outcome.

Inadequate remedy

58. The Council has already accepted there was fault in its handling of this case and offered a payment of £250 that Mr X declined. In addition, the case records show Mr X’s direct payment account was credited with £1400 in January 2020 that could be transferred into his personal account. This covered the period from May 2019 when the first direct payment was made to Mr X.
59. The Council said the payment of £250 was intended to “compensate for the impact of the delays”. But Mr X estimated he spent £150 per week for private care from friends between when he was first assessed in January 2019 and May 2019. He has been unable to provide receipts for this care, presumably because it was done on an informal basis.
60. So while the Council’s remedial action so far has recognised the impact of the delay, it does not adequately acknowledge the fact Mr X had to pay for his own care between January and May 2019.
61. While I would not expect the Council to have made arrangements immediately after the January assessment, it should not have taken nearly 5 months to do so. I would also have expected the Council to have offered some form of support in the meantime. This lack of service provision is fault and requires a further remedy set out below

Agreed action

62. To remedy the injustice caused to Mr X by the Council fault identified in this decision statement, the Council has agreed to take the following action within four weeks from the date of my final decision.
1. Pay Mr X £500 to acknowledge the private care costs he incurred during the period of time he was left without care between January and May 2019. I consider this to be an appropriate sum in the absence of Mr X being able to provide receipts for his expenditure and he would have had to make a contribution towards the cost of his care package in any event.
2. Pay Mr X £250 to acknowledge the time and trouble he has spent dealing with this matter and the distress caused to him. This effectively replaces the £250 already offered by the Council that Mr X refused to accept. It is up to Mr X whether he still wishes to refuse this payment.
3. Reflect on the issues raised in this decision statement and identify any areas of service improvement. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems not reoccur. This report should be sent to the Ombudsman.

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Final decision

63. The Ombudsman has found some fault in the way the Council dealt with Mr X’s care assessment and support plan and the Council has agreed to an additional remedy.

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Investigator's decision on behalf of the Ombudsman