Summary: Mr X complains the Council failed to assess his needs properly before deciding to cut his personal budget by two thirds, leaving him without the care he needs. There is no evidence of fault so we cannot question the merits of the Council’s decision.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to assess his needs properly before deciding to cut his personal budget by two thirds, leaving him without the care he needs.

Back to top

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 a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
4. 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)

Back to top

How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Mr X’s Advocate;
• discussed the complaint with Mr X’s Advocate;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Mr X’s Advocate and the Council, and invited comments for me to consider before making my final decision.

Back to top

What I found

What happened

6. Mr X has a history of mental health problems but has received no recent treatment of this. He has had a personal budget to meet his care needs for many years. Until June 2015, when it closed, he received funding from the Independent Living Fund (ILF). The Council continued to provide the ILF funding. This is reflected in a care and support plan from November 2015, which provided for a personal budget of £719.78 a week. Mr X used this to employ a Personal Assistant (PA) for 35 hours during daytimes and for three nights a week.
7. The Council contacted Mr X about reviewing his needs in January 2018. Mr X and his PA exchanged e-mails with Social Worker A about the arrangements for an assessment. Mr X said his PA and Advocate would attend any meeting. He said he wanted to record the meeting. He objected to Social Worker A bringing another colleague. They agreed Social Worker A would send Mr X a copy of his assessment (from 2015) so he could write comments on it and send it back. They would then meet to discuss a draft assessment. The Council posted the 2015 assessment to Mr X on 31 January.
8. The Council received Mr X’s comments on the 2015 assessment on 26 February. Mr X’s PA said, if the Social Worker wanted to go ahead with a meeting, they wanted to hear from his Manager about the need to bring a colleague to the assessment.
9. On 16 May the Council assigned Social Worker B to Mr X’s case as Social Worker A was leaving.
10. Social Worker B wrote to Mr X on 13 June to check his preferred method of communication and arrange a meeting to review his needs.
11. Mr X’s PA told Social Worker B he: preferred to communicate via her e-mail address; cannot use the telephone; and has acute dyslexia.
12. In July Mr X’s PA set out his difficulties with Social Workers since the 1970s and the conditions for a meeting:
• no one present who could section Mr X under the Mental Health Act 1983;
• confirmation of the length of the review;
• confirmation of the subject matter they would discuss;
• audio recording the meeting;
• Social Worker B attending on his own.
13. Social Worker B agreed to meet on 11 July but said he would bring another Social Worker with him as Mr X would be recording the meeting.
14. Mr X asked Social Worker B to confirm:
• the only purpose of the meeting would be to discuss his self-assessment;
• why the Council needed to review his needs;
• the length of the meeting, saying he could only endure 90 minutes;
• whether he could meet the two Social Workers separately (to take account of his “fears and concerns”);
• why “what should be a rubber stamping activity” had become so complicated;
• what he was being assessed against.
15. Social Worker B told Mr X:
• he would review the self-assessment in line with the Care Act eligibility criteria;
• the meeting should last about 60 minutes but up to 90 if they needed more time;
• meeting each Social Worker separately would cause more anxiety and distress, which they wanted to avoid as far as possible;
• the purpose of the review was not to rubber stamp but to clarify areas of the self-assessment which suggested a very high dependency on his PA, which was contrary to the Care Act.
16. Social Worker B and a colleague met Mr X on 11 July, with his PA and Advocate, to start reviewing his needs. Mr X and his PA agreed to list the support provided over four weeks. They also agreed to review his risk assessment.
17. On 6 August Social Worker B offered to meet Mr X to review his risk assessment.
18. On 14 August Mr X’s Advocate wrote to Social Worker B. She questioned:
• the need for another meeting when he had “grilled him very thoroughly and painfully” at the previous meeting;
• why he could not write a risk assessment and send it to Mr X, highlighting any issues where he needed more information;
• the time taken to complete Mr X’s review and the lack of a coherent plan or process.
19. Social Worker B invited the Advocate to call him so he could explain the process.
20. The Council received the list of support provided by Mr X’s PA on 10 September. This covered 16 July to 15 August. It identifies the support the PA provided in person and by messages reminding Mr X to eat, drink and use the toilet. Social Worker B offered to:
• update the risk assessment based on information already provided, if Mr X confirmed this was still accurate;
• meet Mr X to complete an NHS Continuing Healthcare Checklist;
• to refer Mr X for an Occupational Therapy assessment to identify independent living skills.
21. Mr X’s Advocate replied on 29 October.
22. The Council sent Mr X a copy of his assessment on 19 December. The assessment refers to the extensive support provided by his PA. It reflects Mr X’s views and his PA’s views that:
• there should be no change to his care and support plan;
• any change could risk increasing his mental health problems, including self-harm;
• the PA was spending more time supporting Mr X both day and night than he paid her for.
23. The assessment says Mr X cannot achieve these outcomes:
• maintain personal hygiene;
• being appropriately clothed;
• make use of necessary facilities or services in the community including public transport, and recreational facilities/services;
• able to make use of your home safely.
24. The assessment refers to concerns that Mr X’s PA was in effect on-call 24 hours a day. It says:
• he had developed a high dependency on his PA which was not promoting autonomy;
• the Council’s duty under the Care Act was to “work from a strengths model, to encourage [Mr X] to develop areas of independence and areas of greater personal competence”;
• the PA’s hours should reduce over a planned/phased period with regular reviews to support the change.
25. The assessment resulted in an indicative personal budget of £195.50.
26. In January 2019 the Council reclaimed £11,785 in unspent direct payments from Mr X’s account.
27. Mr X’s Advocate complained to the Council in February. When the Council replied in March it said:
• it was satisfied it had reviewed Mr X’s needs in line with the Care Act 2014;
• it had taken a strength-based and empowering approach to the assessment;
• its risk assessments had taken account of concerns about the impact of changes on Mr X;
• it had highlighted Mrs X’s views and the views of those involved in his care, as well as the Social Worker’s professional judgement;
• Mr X’s review had been overdue;
• Mr X may have needs arising from health conditions which would not fall under the Care Act;
• it accepted the review had taken too long to complete and apologised;
• it did not accept officers had been hostile, punitive or judgemental;
• it did not accept a further review would serve any purpose so soon, given the impact it had on Mr X;
• it had taken account of the ILF assessment, but the Care Act formed the basis of the review.
28. On 10 June the Council asked Mr X’s GP to provide information about his medical circumstances. The Council received information from the GP on 10 July.
29. On 17 June Mr X’s GP referred him to a Consultant Psychiatrist for an assessment. He mentioned a long history of auditory hallucinations and dystonic movements from taking medication in the past.
30. On 29 June Social Worker B proposed meeting Mr X to start work on a care and support plan.
31. On 2 August the Advocate told the Council Mr X did not want to work with Social Worker B. She said August was a difficult time for Mr X and asked the Council to postpone the cut in his personal budget.
32. When the Council replied on 19 September, it apologised for overlooking the Advocate’s e-mail. It said:
• Social Worker B would help Mr X with transition to the new direct payment;
• Mr X could choose to manage the changes himself, with her support;
• they needed to move to a new care and support plan by 29 November;
• it had a three-month timeframe for moving to a new care and support plan and would not delay this further.
33. On 23 September Social Worker B asked the Advocate how Mr X wanted to proceed. He offered to help with the transition and complete a timetable of support. He offered to meet and asked the Advocate to confirm availability.
34. On 24 September the Advocate told the Council Mr X had to give 12 weeks’ notice to his PA, which took them past 29 November. She said:
• losing the support he had had for 15 years could result in a breakdown in Mr X’s care and health;
• the Council had not sought an assessment of Mr X’s mental health;
• Mr X would not meet Social Worker B and was refusing help from the Council;
• Mr X cannot eat prepared foods that have not been checked for allergens;
• meetings with strangers distress him and aggravate the voices in his head.
35. On 3 October the Council told the Advocate:
• Mr X would need to give his PA notice within the next two weeks, with an employment end date of 6 January 2020;
• it would continue to copy correspondence to Mr X, as its main relationship was with him and he needed to be aware of the decisions affecting him.
36. On 14 October the Advocate told the Council
• Mr X had given notice to his PA;
• he did not want to meet with Social Worker B but wanted her to meet him to discuss transition planning.
37. The Council met Mr X’s Advocate on 1 November. Its record of the meeting says the Council confirmed:
• Mr X had choices over transitioning to his new personal budget;
• £195.50 would buy 13 hours of support a week;
• Mrs X would need to provide receipts showing what he spent the money on;
• it had suggested a “Hearing Voices” group but it was for Mr X to decide if he wanted to attend;
• it could provide help recruiting a new PA;
• an Occupational Therapy assessment could identify equipment to help with mobility and help Mr X live as independently as possible;
• it would expect to review in six weeks after introducing a new care and support plan, then after six months and yearly after that;
• Mr X needed a new care and support plan to receive his personal budget;
• it would send a draft care and support plan by 8 November.
38. The draft care and support plan identifies needs with:
• maintaining his living environment;
• eating and drinking (prompting);
• going to the toilet (prompting);
• personal care (prompting, occasional practical help);
• selecting weather appropriate clothing;
• taking part in leisure activities;
• night terrors;
• shopping;
• food preparation.
39. It identifies ways Mr X might address some of these needs but says it is for him to decide how to do so using his personal budget.

Is there evidence of fault by the Council which caused injustice?

40. Under the Care and Support Statutory Guidance (Statutory Guidance) councils are expected to:
• review needs at least every 12 months;
• reassess where there is evidence of a change in need;
• provide a list of questions to be covered in advance of an assessment;
• produce an indicative personal budget as the basis for care and support planning
• take account of a person’s “strengths and capabilities”;
• adapt the assessments to meet the needs of individuals;
• produce a care and support plan setting out the needs a council will meet.
41. When the ILF closed in June 2015, its funding was passed to councils on the basis they would continue to pay it, at least until they had assessed someone’s needs under the Care Act. The issue for me to consider is whether there has been fault by the Council over the way it decided to reduce Mr X’s personal budget. Without evidence of fault I cannot question the merits of the Council’s decision.
42. The Council accepts it should have completed the assessment more quickly and has apologised. However, this did not cause significant injustice to Mr X as he continued to receive his original personal budget throughout the process and his key aim has been for this to remain in place.
43. The evidence shows the Council’s assessment has been in line with the requirements of the Care Act and the Statutory Guidance. The Council has sought to involve Mr X as much as possible in the process. When that has not been possible, it has involved those whom Mr X has asked to speak for him. It has adapted the process to reflect Mr X’s requests, although it has not been able to do so where that would have resulted in the Council not acting in line with the Care Act or the Statutory Guidance.
44. Having completed the assessment, the Council has gone on to draft a care and support plan. It has suggested ways in which Mr X could use a personal budget of £195.50 to meet his eligible care needs and discussed this with his representatives. There is nothing in that to suggest fault by the Council.

Back to top

Final decision

45. I have completed my investigation as there is no evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman