Summary: Mr X complained the Council is failing to meet his care needs and carried out flawed Care Act assessments of his needs. The Council was at fault. It carried out flawed Care Act needs assessments in 2017 which on balance contributed to a lack of care and support for him until June 2018. It also failed to adequately record and document its decision making and delayed carrying out an agreed action following its own stage 2 investigation. The Council agreed to pay Mr X a total of £1150 to remedy the injustice the faults caused. Since June 2018 the Council has offered to carry out a fresh needs assessment using an Independent Social Worker. It has also regularly offered him interim care packages. This is in line with relevant law and statutory guidance. It remains open for Mr X to accept and undertake a fresh needs assessment.

The complaint

1. Mr X complains the Council is failing to meet his care needs and he is without any care support. Mr X complains:
• The care packages the Council has offered him do not meet his needs and have decreased over time while his health has deteriorated.
• The Council refused to implement a care and support plan based on the recommendations of a needs assessment carried out in December 2017.
• The Council failed to record or explain the reasons why it refused to implement the care and support plan in December 2017.
• The Council failed to carry out agreed recommendations following the adjudication of a stage 2 investigation in April 2019.
• The Council carried out a needs assessment on Mr X in May 2020 without consulting with him and used old information from previous assessments in 2017 which he considered were flawed.
2. Mr X says his health continues to deteriorate without adequate care and the ongoing matter is causing him distress, frustration, uncertainty and time and trouble.

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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 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). Mr X has complained about historic matters related to flawed needs assessments and the level of care and support he has received from the Council. I have not investigated events prior to October 2017 as they happened too long ago to come to a fair and meaningful conclusion on whether there was maladministration and were matters decided under old legislation before the Care Act 2014 was introduced.
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. I spoke to Mr X about his complaint and considered the information he provided.
7. I considered the Council’s response to my enquiry letter.
8. I considered the Council’s stage 2 investigation which concluded in April 2019.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Assessment of needs

10. Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person's finances. Following an assessment, the Council must decide which needs are eligible for their support. If the Council provides support, it must produce a written care plan.
11. The government introduced the Care Act in 2014 to modernise how people were provided with care and support as adults. Prior to 2014 councils considered a person’s care needs under the NHS and Community Care Act 1990.
12. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. An adult’s needs are only eligible when they meet all three of the following conditions:
1. The needs must arise from or be related to a physical or mental impairment or illness.
2. Because of the needs, the adult must be unable to achieve two or more of the following specified outcomes:
1. Managing and maintaining nutrition;
2. Maintaining personal hygiene;
3. Managing toilet needs;
4. Being appropriately clothed;
5. Being able to make use of the adult’s home safely;
6. Maintaining a habitable home environment;
7. Developing and maintaining family or other personal relationships;
8. Accessing and engaging in work, training, education or volunteering;
9. Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
10. Carrying out any caring responsibilities the adult has for a child.
3. Because of not achieving these outcomes, there is likely to be a significant impact on the adult’s well-being.
13. The Care Act says that where an adult refuses a needs assessment, the council concerned is not required to carry one out. If however the adult changes their mind, the council must then carry out an assessment.
14. The care and support statutory guidance says, if an adult refuses a needs assessment and the council identifies the adult lacks mental capacity and that carrying out a needs assessment would be in the person’s best interest then the council is required to do so. The same applies where the council identifies that an adult is experiencing, or is at risk of experiencing, abuse or neglect. Where the adult who is a risk of abuse or neglect has capacity and is still refusing an assessment, councils must undertake an assessment so far as possible and document this.

What happened

Background and historical context

15. Mr X is an adult who lives alone and has a long historical relationship with the Council’s adult care services. Mr X has a number of health conditions and over the last 10 years has experienced a decline in his physical health.
16. Mr X has received care and support from the Council for over 20 years and the packages have varied significantly during that time. Mr X has received packages ranging from 21 hours per week to 24-hour live in care. For a period of time up to 2011 Mr X had 24/7 live in carers with a large yearly budget. However, the Council reviewed Mr X’s care in 2011 when his full-time carer left. The Council have since offered Mr X much smaller care packages which he says do not meet his needs.
17. The Council has carried out various assessments of Mr X’s needs since 2011 both before and after the introduction of the Care Act. Mr X’s view is that these assessments were flawed. He said the Council refused to accept a needs assessment carried out by an independent social worker in 2014 and offered him a package much lower than recommended. Mr X also said the Council carried out a flawed assessment during 2017 when a copy of the assessment was sent to Mr X which included details from a previous partially completed assessment.
18. In 2012, the Council offered him 3 hours per day and in 2013, it offered him 21 hours per week. Mr X declined these offers of care on the basis they did not meet his needs. Although Mr X has had intermittent services from adult social care, he has not had a care package in place since 2011.

Mr X’s complaint to the Council

19. Mr X formally complained to the Council in March 2018. The Council carried out a stage 2 investigation which concluded in April 2019. Mr X had complained specifically that his hours of care had decreased while his health had continued to deteriorate. The Council’s investigation looked at events which occurred between 2017 and 2018 and which form the basis of his complaint to the Ombudsman as outlined in paragraph 1.

The Council’s investigation

20. The Council’s stage 2 investigation report summarised what happened from June 2017 onwards. In June 2017, the Council visited Mr X to carry out a Care Act needs assessment. An occupational therapist (OT) and a specialist mental health services officer were also present. However, the assessment was not completed as records show Mr X ended the visit. Based on the information the Council managed to obtain from the visit it believed a package of 16 hours per week could meet Mr X’s needs. Mr X however believed the assessment was flawed on the basis the assessment itself was incomplete. The Council did not make a formal offer of care.
21. At the end of 2017 Mr X agreed to a Care Act needs assessment. The Council asked a senior social worker (SSW) and a team manager (TM) to jointly work with Mr X to assess his needs. The Council emailed Mr X a copy of this assessment however this contained information from a previous needs assessment therefore in Mr X’s view this assessment was also flawed. The Council’s investigation found this was probably due to a computer system error which auto filled the assessment with old information. The Council apologised to Mr X and offered for the SSW and TM to carry out another assessment.
22. The SSW and TM visited Mr X again in November 2017 to complete their assessment. Records show the SSW and TM marked their assessment of Mr X on the Council’s systems as complete. Records show the SSW emailed Mr X in early December 2017 and told him they would confirm the care and support recommendations by the end of the week.
23. The records show the SSW and TM recorded Mr X needed 37 hours a week of care and support to meet his needs. This was based on the professional judgement of the SSW and TM was within the TM’s delegation for agreeing care packages. However, the records show the Council decided to call a multi-disciplinary meeting to discuss the matter. There are no notes or records of the purpose of this meeting or of what was discussed. The SSW and TM stated they recorded Mr X’s needs on the system and recorded a case note relating to the multi-disciplinary meeting however there is no record of it.
24. Following the meeting the records show senior Council officers decided not to meet the recommendations the SSW and TM put forward. The Council told the SSW and TM they would no longer work with Mr X and should cease communication with him. I have seen no records which explain this decision however records do show the SSW and TM were upset the Council did not accept their professional judgement.
25. The Council appointed a new social worker to work with Mr X. They visited Mr X and told him the Council considered 14 hours per week would meet his needs. Mr X asked for a copy of the needs assessment to support this view. The Council sent Mr X a copy of an assessment however this was dated June 2017 and therefore Mr X would not accept it.
26. The Council offered Mr X 21 hours of care and support on an interim basis to cover Mr X’s needs over the Christmas period. This offer was not based on any needs assessment previously carried out. Mr X declined this offer of care on the basis it did not meet his needs and was not based on the assessment the SSW and TM carried out.
27. There are no records of the Council having any contact with Mr X about his care and support needs between January and June 2018.
28. In June 2018 the Council offered Mr X a fresh needs assessment on two occasions however he refused. Mr X remained unhappy with how the Council had carried out needs assessments in the past and its offers of care which he said did not meet his needs.
29. A senior Council social care officer met with Mr X in July 2018 to discuss how to move forward with his care and support. Following the meeting the officer wrote to Mr X acknowledging inconsistencies and misunderstandings in the past. The officer explained how when the Care Act was introduced in 2014 it changed how councils implemented care and support. The officer offered Mr X a needs assessment from an Independent social worker (ISW) and occupational therapist (OT). Records show Mr X was unwilling at this stage to commit to an assessment.
30. In September 2018 Mr X told the Council he wanted 28 hours of care per week as a starting point. The Council offered Mr X an interim package of care pending the outcome of a full needs assessment. Following a short stay in hospital the Council advised Mr X that his interim care package of 3 x 1-hour visits per day would start at the beginning of October 2018. However, records show Mr X declined this and wanted a full assessment and care and support plan completed.
31. Between October 2018 and early 2019 the records show the Council tried to engage Mr X into accepting an interim care package, pending the agreement and completion of a full assessment of his needs. However, Mr X disagreed with various aspects of the offers. This included times of calls, not wanting two carers attending and the package not being enough to meet his needs. Records show Mr X continuously asserted that he would not accept another flawed assessment of his needs.

The Council’s stage 2 investigation findings

32. In February 2019 the Council’s investigator completed their stage 2 report into Mr X’s complaints. The investigation found there were insufficient records about why the needs assessment carried out by the SSW and TM, and proposed care package, was not approved. The investigation found neither of the needs assessments started in 2017 were completed, nor did they result in a care and support plan for Mr X, despite identifying needs. The investigation found Mr X had lost confidence in the Council as a result of mixed messages and inconsistent communication around his care.
33. The investigator made several recommendations. This included offering Mr X an independent needs assessment with an assurance that the Council accepts the outcome as a correct determination of his eligible needs under the Care Act.
34. The Council’s adjudication officer sent Mr X a letter in April 2019 after considering the outcome of the stage 2 investigation. The adjudicator said the Council agreed with the findings of the stage 2 investigation and its recommendations. The letter acknowledged Mr X’s ongoing concerns about historic issues not considered by the stage 2 investigation. It said it would thoroughly investigate these matters and would send Mr X a further report in due course.
35. At the end of April 2019, the Council set out its position to Mr X. It said it would offer Mr X a Care Act need assessment from an Independent Social Worker (ISW) and would accept the outcome of that assessment. It would then use the assessment to create a care and support plan. The Council said in order for it to offer care services it needed an up to date assessment of his needs. The Council said it would continue to offer crisis care in an emergency, but that care would be based on information the Council already holds.
36. In June 2019 the Council engaged with Mr X again and made a new offer of care and support. Records show Mr X explained what he thought he required each day to meet his needs. The Council decided it could meet those needs with a package of 30.5 hours per week. The Council said it would then review this going forward. Mr X declined the offer on the basis he considered the offer as final rather than an interim measure.

Mr X’s first complaint to the Ombudsman

37. Mr X remained unhappy with the Council’s handling of his care and was unhappy with the Council’s response to his complaint, so he complained to the Ombudsman.
38. In August 2019 Mr X withdrew his complaint to us on the basis he had reached an agreement with the Council. Mr X provided the Ombudsman with a telephone recording he had with the Council’s adjudicating officer. The adjudicating officer stated Mr X’s past needs assessments and how the Council dealt with them during 2017 were ‘dodgy’. Mr X agreed to withdraw his complaint to us on the basis he was satisfied the Council would now move forward and carry out a fresh needs assessment.
39. In November 2019 Mr X consented to meeting an ISW for the purposes of carrying out a needs assessment. The Council offered to put in place an interim care package based on information it already held until the completion of the full assessment. The Council also agreed to deep clean Mr X’s home. Records show however that Mr X did not agree to input from the OT as he believed his home was already appropriately adapted. The needs assessment and deep clean did not progress.

Mr X’s current complaint to the Ombudsman

40. In December 2019, Mr X complained to us again. He complained the Council had gone back on its word and had still not provided him with any care. Mr X reiterated some of the complaints he made initially as outlined in paragraph 1.

Events since Mr X complained to us

41. Mr X complained to us in December 2019 and continues to complain about the Council’s handling of his care.
42. In January 2020 Mr X agreed an offer of interim care from the Council which included a morning, teatime and evening call, however he then rejected it because the carers were male. Records show the Council were unable to source any other care at that time. The Council offered Mr X respite care in a care home however Mr X did not want to move to a residential setting.
43. The Council contacted Mr X again in February 2020 about whether he would accept an assessment from an ISW. The Council suggested an ISW which it regularly uses. The Council said the ISW was available to carry out the assessment in early March 2020. Mr X declined and said he was unhappy with the conditions of his home and would not allow the assessment to take place. Mr X declined an offer to move to a residential setting.
44. During March 2020 Mr X spent some time in hospital. The Council offered Mr X a temporary residential placement until it could source a home care package. It reminded Mr X that any interim care would be based on information it already held. For longer term needs it told him it still required a full assessment.
45. Records show Mr X continued to express his dissatisfaction at how the Council had historically dealt with his care. However, he declined interim care and said he would not accept any further assessments. The Council gave Mr X information about support services he could use to assist him when the Covid-19 outbreak began.
46. In April 2020 Mr X wrote to the Council and gave it options. He said the Council should either give him a care package to meet his basic needs or return his full-time live-in care. Mr X also said it could move him to a residential care home. The Council wrote to Mr X and offered him a package which included 3 x calls per day with two carers. The Council said it could offer additional time for a bath call however it would need up to date information and a risk assessment from an OT. The Council said it would deep clean his flat, put new flooring in his kitchen and maintain his home environment longer term. The Council said this package could start the following week. Records show Mr X declined the offer.
47. At the end of April 2020, the Council was contacted by the Ambulance Service and the Red Cross. Both were concerned about Mr X’s mental health and the fact he did not have any care. The Council wrote to Mr X and outlined its position. It reiterated its offer of the interim care package and attached a copy of the needs assessment and care and support plan it had put together using information it already had on file. The Council said again that any longer-term care must be on the basis of a full needs assessment. The Council said Mr X was an adult with capacity to make his own decisions and therefore it respected his decision not to accept the interim care or undertake a needs assessment.
48. Following the Council’s letter to Mr X he further complained to us about the copies of the needs assessment and care and support plan it attached. Mr X said the Council completed these without his consent or input and they contained information from previous assessments which he considered were flawed. Mr X described this assessment as fake.
49. At the end of May 2020, the Council closed Mr X’s case on the basis he had declined care and support and had also requested his case was closed.
50. Mr X said he does not trust the Council and said he could not see a way forward. Mr X stated he would not undertake another needs assessment and remained unhappy about how his level of care was removed. Mr X said he believes the Council has already pre-determined the level of care he would receive, regardless of the outcome of a new needs assessment.

My Analysis and findings

51. I have only investigated matters from October 2017 onwards. The Council carried out a stage 2 investigation which concluded in 2019. There is no evidence of fault in the way this investigation was carried out. Mr X has pointed our errors in the Council’s chronology of historical context regarding the care packages he received prior to this date. However, this does not impact on my investigation, therefore I have not re-investigated matters. Instead I have considered the findings of the Council’s investigation and its adjudication of those findings.
52. The crux of Mr X’s complaint is that historically his care packages have reduced while his health has deteriorated. However, it is not for the Ombudsman to say what level of care is appropriate to meet Mr X’s needs. We can only look at how the Council made its decisions and whether there was fault in the process it used to make those decisions. I have looked at the decisions the Council has made from 2017 onwards.

The Council’s handling of Mr X’s needs assessments and care between October 2017 and June 2018

53. In 2017 Mr X had been without care for some years. He agreed to a Care Act needs assessment. The records show the SSW and TM came to a view that Mr X required 37 hours per week to meet his needs.
54. Although the assessment was never formalised into a care and support plan, it was the professional judgement of both the SSW and TM that Mr X required 37 hours of care per week. There are no records, minutes or documented information to show why the Council decided not to support and implement that recommendation. The Council held a multi-disciplinary meeting to discuss the matter however there are no minutes of the meeting. The Council was unable to give a reason why this was the case. The lack of record keeping on this matter is fault and showed a lack of transparency. The failure to provide Mr X with 37 hours per week following the needs assessment, without any explanation or evidence to show the assessment was wrong, is fault.
55. Instead of progressing the SSW and TM’s recommendation of 37 hours per week the Council instead told Mr X it considered 14 hours per week could meet his needs. Again, there are no records or rationale as to why this was the case. That is fault. The Council sent Mr X a copy of a needs assessment to support this decision however it was dated June 2017 and therefore not based on the work carried out by SSW and TM. That is fault.
56. Following the Council’s offer of 14 hours per week, it then offered him 21 hours per week interim care. While it was appropriate to offer interim care in the circumstances, there are is no documented rationale to show how the Council made this decision. That is fault.
57. The Council’s handling of Mr X’s needs assessments and care and support during this period was flawed. This is supported by one of its senior officers agreeing the assessments were ‘dodgy’ during a phone call to Mr X. On balance these faults contributed significantly to Mr X’s lack of care and support during this period.

The Council’s stage 2 investigation recommendations

58. Between June 2018 and the conclusion of the stage 2 investigation the Council made appropriate attempts to offer Mr X care and support and to meet its duties under the Care Act. The Council made it clear it would offer interim care until a full needs assessment was carried out. Mr X declined these offers. Although Mr X understandably had mistrust of the Council due to its previous handling of his needs assessments, I cannot say it was at fault during this period.
59. The Council’s stage 2 investigation acknowledged some fault around how it dealt with Mr X following the assessment the SSW and TM carried out in 2017. However, it failed to clearly acknowledge the faults I have identified in paragraphs 53-57. It offered, and continues to offer, Mr X a fresh assessment from an ISW which is appropriate. However, it did not appropriately remedy the distress, uncertainty and confusion Mr X experienced because of its handling of his care during this period. There are no records showing further communication from the Council between January 2018 and June 2018. Therefore, on the evidence seen, the faults identified contributed to Mr X’s lack of care and support between December 2017 and June 2018. I have therefore recommended a remedy for the injustice this caused below.
60. The Council’s adjudicator also acknowledged Mr X’s ongoing concerns about historic issues not considered by the stage 2 investigation. It said it would thoroughly investigate these matters and would send Mr X a further report in due course. I have not investigated these periods and it is unclear why the Council agreed to do so in its adjudication letter but limited its scope during the investigation. There is however no evidence the Council has carried out this action to date and it has not adequately explained to Mr X why. This is a significant delay and is fault.

The Council’s actions since the conclusion of its stage 2 investigation

61. Since the conclusion of the investigation the records show that the Council has made considerable efforts to enable Mr X to receive care and support. This is in the way of the offer of both a new needs assessment and interim care. However, Mr X continues to mistrust the Council and has disengaged with it on a number of occasions. It is acknowledged Mr X and the Council have a difficult relationship and Mr X has displayed challenging behaviour throughout the period covered in this investigation.
62. Mr X said the Council carried out another flawed and fake assessment in May 2020. The records show at this time that Mr X had spent a period in hospital. Due to concerns about Mr X’s mental health and his living conditions, external agencies contacted the Council. The Council therefore decided to carry out a needs assessment based on information it already held so it could offer Mr X interim care. This is in line with the care and support statutory guidance and the Care Act. The Council was not at fault.
63. Mr X’s health is declining and he remains without care. I cannot say what level of care Mr X needs and I cannot tell the Council what care and support to give him. While the Council was at fault for how it dealt with his needs assessment in the past, the Council is not at fault for requiring an up to date assessment before it can put together a care and support plan. Until this is completed it has offered Mr X an interim care package which he has not accepted. Mr X has capacity to make his own decisions on whether to accept care.
64. I have found fault in how the Council dealt with Mr X’s need for care and support for a period between December 2017 and June 2018. However, since this point, the records show the Council has made appropriate efforts to offer Mr X both interim care and a fresh needs assessment. This is in line with relevant law and statutory guidance. The Council has confirmed in writing that it will accept the outcome of a new needs assessment and Mr X is free to choose an ISW if he wishes to do so. A new assessment would consider Mr X’s current eligible needs and his current medical conditions in deciding the level of care he requires. Mr X continues to have a deep mistrust of the Council due its past handling of his care and support. However, unless Mr X accepts the Council’s offer of a fresh assessment with an ISW then the Council cannot implement a care and support plan. The Council said its offer remains open for Mr X to accept at any time.

Injustice to Mr X

65. As explained above I have found fault with how the Council dealt with Mr X’s needs assessments and his care and support between December 2017 and June 2018. The faults caused Mr X distress, uncertainty, time and trouble and led to him receiving a lack of care during that period. The Council’s stage 2 investigation also found fault however it did not offer a suitable remedy. I therefore made recommendations to remedy the injustice this caused Mr X. The recommendations are in line with our guidance on remedies.
66. Mr X remains without care which is causing him an ongoing injustice. However, I cannot say this is because of Council fault from June 2018 onwards. Since this point, as already explained above, the Council has made appropriate offers of care and support and has agreed in writing to accept the outcome of a needs assessment from an ISW. Mr X is of the opinion that the Council will not accept the outcome and has already pre-determined the level of care if would offer. However, I cannot comment on events that have not yet happened. If Mr X accepts the offer of the fresh assessment it remains open to him to complain again should the Council fail to carry out the offer or if he considered the assessment process was flawed.
67. Mr X has mistrust of the regular ISW which the Council uses therefore I have made a further recommendation in relation to this below.

Agreed action

68. Within one month of the final decision the Council agreed to;
• Apologise to Mr X and pay him £1000 to acknowledge the distress, uncertainty, time and trouble and lack of care and support between December 2017 and June 2018 caused by the faults in the needs assessment process.
• Apologise to Mr X and pay him £150 to acknowledge the uncertainty and frustration caused by its failure to carry out an investigation into historic matters which it agreed to do following the adjudication of its stage 2 investigation. It agreed to explain to Mr X how it intends to carry out this action and give him timescales of when it intends to complete it by. It agreed to do this within six months of the final decision. If the Council decides not to carry out this investigation it agreed to explain why in writing to Mr X.
• Write to Mr X and reiterate its offer of a fresh needs assessment from an Independent Social Worker. The Council agreed to send Mr X a selection of Independent Social Workers for him to choose from. It agreed to reaffirm its offer of an interim care package until the assessment is completed.

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Final decision

69. I have completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman