Bolton Metropolitan Borough Council (18 015 172)

Category : Adult care services > Other

Decision : Not upheld

Decision date : 17 Apr 2019

The Ombudsman's final decision:

Summary: Miss X complains that the Council is not providing the support she needs. She says the Council referred her to an out-of-area advocacy service, breached her human rights by trying to discuss her personal information, failed to respond to her complaints, and failed to tell her about appointments. Miss X says this caused her significant stress. The Ombudsman does not find fault with the Council.

The complaint

  1. The complainant, who I refer to here as Miss X, complains that:
      1. the Council referred her to an out-of-area advocacy service;
      2. the Council is not providing the support she needs;
      3. a social worker breached her human rights by trying to discuss her personal information with the autism team;
      4. the Council has not responded to her previous complaints; and,
      5. the Council failed to tell her about appointments, which she then missed.
  2. Miss X says this has caused her significant stress.

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The Ombudsman’s role and powers

  1. 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)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

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

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What I found

  1. 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.

Complaints procedure

  1. The Council has a two stage complaints procedure. This says that the Council aims to respond in full within 20 working days. If the complainant is not happy with the response, they can ask to escalate the complaint to stage two of the complaints procedure.
  2. If the complainant remains unhappy, they will be signposted to the Ombudsman

What happened

  1. Over the past few years, Miss X has complained to the Council about a number of issues.
  2. In August 2018, Miss X was assessed by the Council’s autism team. The outcome was that she was put on a waiting list for some sessions with the autism team.
  3. The Council decided to assess Miss X’s needs and look at how it could support her in dealing with her complaints. A social worker called Miss X to tell her about an assessment meeting at the end of August. The social worker left a voicemail message for Miss X with the details of the meeting. Miss X did not attend that meeting.
  4. In early September, two social workers met with Miss X to complete the assessment. It seems that Miss X believed the social workers were there to advocate for her in her complaints against the Council. Due to this misunderstanding, the assessment was not completed. Miss X agreed to meet the social workers again to complete the assessment.
  5. A few days later, one of the social workers called Miss X to tell her the meeting had been arranged for the following week. The Council says Miss X wanted the social worker to talk about her complaints. The social worker said this was not her role. Miss X hung up.
  6. The same day, the other social worker called Miss X and told her the date of the meeting. The Council says Miss X was not happy that this social worker would not help her with her complaints, and hung up.
  7. On the day of the meeting, one of the social workers left a voicemail message for Miss X reminding her of the meeting that day. Miss X failed to attend that meeting.
  8. In early October, Miss X met with the two social workers. They started the assessment of Miss X’s needs. Miss X agreed to the Council referring her for an independent advocate to help her with her complaints to the Council.
  9. Two days later, the Council made a referral to an organisation to get Miss X an advocate. The organisation replied, saying the referral did not fit the Care Act criteria.
  10. A few days after this, a meeting had been arranged with Miss X and the two social workers to carry on with the assessment. Miss X did not attend. The social workers called colleagues who said Miss X had called asking for them to visit her at home. The social workers did not get the message their colleagues had sent earlier because there was no phone signal in the room they were in, waiting for Miss X.
  11. The social workers then went to Miss X’s home. Due to the time they arrived, they were not able to complete the assessment. They arranged another meeting date for mid-October.
  12. One of the social workers left a voicemail message for Miss X telling her the date of the next meeting. She suggested to Miss X that they meet at her home or another location.
  13. The day before the meeting, the other social worker left a message for Miss X asking for her to call back to agree where the meeting would be. He said they needed her confirmation to go ahead with the meeting.
  14. The meeting did not go ahead the next day because Miss X did not call back.
  15. In November, the Council contacted the organisation who had declined the referral for not meeting the Care Act criteria. The Council asked it to reconsider. The organisation said the referral should go to the mental health charity, MIND.
  16. A day later, MIND said the referral did not meet the Care Act criteria.
  17. A few days later, one of the social workers contacted two local autism organisations to see if they could help to arrange an advocate for Miss X.
  18. The Council agreed to commission an advocate for Miss X from one of these local organisations. One of the social workers left Miss X a voicemail message, telling her it had commissioned an independent advocate for her.
  19. In mid-November one of the social workers left a voicemail message for Miss X with the date of the next meeting. The Council sent Miss X leaflets from the organisation that would advocate for her, and a note with the date of the next meeting.
  20. A few days later, Miss X called one of the social workers. He explained that the organisation is for advocacy to help her with her complaints. Miss X said this was not necessary, and was an unnecessary expense. Miss X said she could not attend the meeting at the end of the month.
  21. At the end of November, Miss X called the Council to complain that no one was helping her with her complaints.
  22. The Council said the social workers’ role was to assess her needs, and if she was eligible she would get a personal budget. This would help Miss X to access support to deal with correspondence and any tasks she found difficult because of her condition.
  23. In November and December, Miss X made seven judicial review claims to the court. Six of these were dismissed as having no merit.
  24. In January 2019, the court made a General Civil Restraint Order against Miss X. This meant she could not apply to the court for another judicial review for two years.
  25. In February, Miss X’s seventh judicial review claim, which was against the Council, was refused in court for having no merit.
  26. The Court commented that the Council knew it had duties to Miss X, and the Council wanted to engage with her and do what it could to support and help her. The Court said it would be “sensible” for her to engage with an assessment of her needs.
  27. In March, the Council wrote to Miss X about a number of complaints she had made. It said it understood that Miss X has disabilities that make it more difficult for her communicate with the Council. It said she may find it helpful to have an advocate to help her.
  28. The Council said it does not have its own advocacy service so it cannot directly provide her with the support she needs. It said this is why it has offered to pay for an independent advocate for her. It gave the organisation’s contact details.
  29. The Council said if Miss X preferred to arrange her own advocate, it would consider paying for this.
  30. The Council then gave specific responses to a large number of complaints Miss X had made. It found one complaint that had not been responded to. It answered the complaint and apologised for not responding to that complaint.
  31. It said Miss X complained that the Council had failed to respond to all the complaints she had made. The Council attached the responses it had made to her many complaints, and disagreed that it had failed to respond. The Council said the attached papers showed that Miss X repeatedly complained about the same issues even though Council had responded.
  32. The Council said Miss X’s complaints had completed the formal complaints procedure.

Analysis

Referral to advocacy service

  1. Miss X complains that the Council referred her to an advocacy service that was outside the area she lives in (part a of the complaint).
  2. The Council found two local organisations that specialise in autism, that could provide Miss X with an advocate. Both were in nearby areas. The one the Council chose to commission a service from is in the neighbouring borough to Miss X, and is the closest to her home.
  3. The Council says it does not have in-house advocates. It says it would be inappropriate for a Council officer to act as an advocate for Miss X in her complaints against the Council. So, it has decided that Miss X needs an advocate from outside the Council. This is entirely appropriate, and is evidence of good practice.
  4. The Council is entitled to decide who it commissions services from. In this case, the organisation was appropriate to Miss X’s needs and was close to her home. For this reason, I do not find fault with the Council.
  5. The Council’s complaints procedure does not say it must provide complainants with advocates. However, the Council has identified that Miss X has communication difficulties and that she may benefit from having an independent advocate to help her. This is good practice.

Providing support

  1. Miss X complains that the Council is not providing her with the support she needs (part b of the complaint).
  2. The Council agreed to commission an advocate to help Miss X with her complaints against the Council. The Council has attempted to arrange an independent advocate for Miss X but she has refused.
  3. Miss X has chosen not to accept the advocate the Council arranged for her. This is her choice. The Council told Miss X that it would consider paying for another advocate, if she would prefer to arrange her own. This is good practice.
  4. The Council says the offer of an independent advocate through this local organisation is still open to Miss X, should she wish to use that service.
  5. I do not agree that the Council has failed to provide Miss X with support. For this reason, I do not find fault with the Council.

Personal information

  1. Miss X complains that a social worker breached her human rights by trying to discuss her personal information with the autism team (part c of the complaint).
  2. The Ombudsman cannot make a finding about alleged breaches of human rights. This is an issue only the courts can determine. However, the Ombudsman can look at a council’s actions and decide if those actions were appropriate.
  3. Miss X says that she was told that the social worker called the autism team and asked personal questions about her. She says she was told that the team refused to discuss her personal details with the social worker.
  4. In this case, as I understand it, the autism team is part of the Council. It is entirely appropriate for a social worker to discuss a service user with another department that is involved with the customer. For this reason, I do not find fault with the Council.

Responses to previous complaints

  1. Miss X complains that the Council has not responded to her previous complaints (part d of the complaint).
  2. Some of Miss X’s complaints about the Council have been dealt with at Court in the judicial reviews that she submitted. Those complaints were found to be without merit. As I have said in paragraph five, the Ombudsman cannot look at what has happened in court. For this reason, I have not considered those complaints that formed part of the judicial reviews.
  3. The Council wrote to Miss X in March 2019 and addressed all of the complaints that Miss X said had not been dealt with. The Council also sent Miss X copies of all of its complaints responses.
  4. The Council found one complaint that had not been answered. Miss X complained that the Council said it would respond to her complaint in 20 working days, but did not explain that ‘working days’ does not include weekends or bank holidays.
  5. The Council said that this was a standard term that was often used. It gave a full explanation, and apologised if Miss X found the term confusing.
  6. The Council accepts that it did not respond to this complaint. Given what the complaint was about, I do not find that the Council’s failure to answer it is significant enough to find fault.
  7. I have seen evidence that the Council has responded to all of Miss X’s complaints (that were not dealt with by way of judicial review). She may not be happy with the Council’s responses, but this is not evidence of fault. For this reason, I do not find fault with the Council.

Missed appointments

  1. Miss X complains that the Council failed to tell her about appointments, which she then missed (part e of the complaint).
  2. In August 2018, the Council called Miss X and left a message telling her the appointment date and time. Miss X did not get this message because she had changed phone numbers. She says she told the Council about her new phone number. The Council does not have a record of this.
  3. I do not find fault with the Council for this, because the Council made a genuine attempt to inform Miss X about the appointment.
  4. Miss X missed a meeting with the social workers in September. Council records show that one of the social workers told Miss X about the appointment during a phone call. The social worker also then left a reminder voicemail message.
  5. I do not find fault with the Council because I find that the Council told her about this appointment.
  6. Miss X missed a meeting in October. Council records show that one of the social workers left a voicemail message for Miss X telling her the date of the appointment. In the message, the social worker suggested that the meeting take place at Miss X’s home or somewhere else.
  7. The day before the meeting, the other social worker left Miss X another voicemail message. He said he needed Miss X to call back so they could agree where the meeting would be. Council records show that Miss X did not call back, so the meeting did not go ahead.
  8. I do not find the Council at fault, because I find the Council told her about the appointment.

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Final decision

  1. I have completed my investigation. I do not uphold Miss X’s complaint because there is no evidence of fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman

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