Summary: The complaint relates to the Council’s decision to change the way it provided support to Ms D which led to a reduction in the support package that Ms D received. The Council has assessed Ms D’s needs and provided a replacement support package, but there was a lack of clarity in how the Council assessed that the initial care package met Ms D’s needs. The Council has agreed to apologise to Ms D and pays her £150.

The complaint

1. Ms C complains on behalf of her sister, Ms D, who has a mental health diagnosis. Ms C says the Council changed the way it provided support to Ms D and reduced her support package. She says the Council did not sufficiently consult her or Ms D about the changes, did not properly assess Ms D’s needs and the new support package did not meet Ms D’s 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, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

4. I discussed the complaint with Ms D and I considered the documents that she and the Council sent and the relevant law, guidance and policies.

Back to top

What I found

Law, guidance and policies

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Assessment, care plan and personal budget

6. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.

Eligible needs

7. The threshold for eligibility is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Council must consider whether:
• The adult’s needs arise from a physical or mental impairment or illness.
• As a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes.
• As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
8. The outcomes are:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Being able to make use of the home safely
• Maintaining a habitable home environment
• Developing and maintaining family or other personal relationships
• Accessing and engaging in work, training, education or
• Making use of necessary facilities or services in the local community
• Carrying out caring responsibilities for a child.

Duty to consult

9. There is no general duty for public authorities to consult those affected by their decisions; but a duty may arise because of the duty to act fairly, or as a result of a legitimate expectation.
10. A good consultation:
• Is at a time when the authority’s proposals are still at a formative stage.
• Gives sufficient reasons for any proposal to allow intelligent consideration and response.
• Gives adequate time for consideration and response.
11. The outcome of the consultation must be conscientiously taken into account in finalising any statutory proposals.
12. Caselaw also says that the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.

Intensive Housing Management

13. Intensive Housing Management (IHM) describes the services provided by a supported housing landlord, to ensure the ongoing viability of a tenancy with respect to the needs of the tenant. IHM includes tasks which are beyond general housing management to support tenants in social housing who have greater needs. IHM can be funded by enhanced housing benefit.

What happened

14. Ms D has a history of mental health problems and has been detained in hospital under a section of the Mental Health Act 1983 in the past.
15. In 2001, Ms D started to live at house K. House K was owned by a housing association and consisted of eight flats, seven of which were occupied by people with mental health problems. The eighth flat was occupied by support staff who were present 24 hours a day although, about five years ago, the support was reduced to daytime support only.
16. The Council said the support Ms D received was provided by the Council’s prevention service offering tenancy based support funded by intensive housing management (IHM) funding. The Council acknowledged that this team may also be meeting some needs which would fall under the Care Act. It is my understanding that two staff members were present during the day to provide support.
17. At the time, the Council had three separate teams providing support to:
• People with lower level mental health needs.
• People with mental health and substance misuse issues.
• People who have experienced historic sexual abuse.
18. The Council proposed to combine the three teams into one team. The objectives of the new team were to:
• Act as a single point of contact for vulnerable adults who may have either substance issues, mental health issues or who were vulnerable.
• Market the service.
• Promote access to the service in a range of settings.
• Support individuals to access appropriate community health and social care services.
19. The Council started a consultation on the proposal. The Council wrote to Ms D on 31 July 2019 to ask for her views on the proposals and gave her 14 days to reply.
20. Ms C contacted the Council, via her MP, on 20 August 2019. She had found out that there were proposed budgets cuts at Home K, proposed reductions in staff and reductions in the communal areas and she was concerned about these proposed changes.
21. The Council replied and said:
• It had consulted residents about the proposed amalgamation of the 3 teams. The proposal would improve outcomes for people who experienced mental ill health.
• It had carried out a Care Act assessment of each tenant to identify their needs. If the current team provided support for an assessed need (as per the Care Act), then a new provider would be found or the tenant would be offered a cash budget to pay a provider.
• The housing association would also provide support to tenants to maintain their tenancy.
• The plan did not include keeping a staff office, but that could be considered as part of the consultation.
22. Ms C asked further questions. She said she was concerned if the plan was to reduce the daytime cover and she wanted to know whether members of the current team would be retained. She asked who the social landlord was and asked whether the tenants should have a representative.
23. Ms C raised further concerns on 7 October 2019. She was concerned that a social worker would assess Ms D’s needs and felt this should be done by a community psychiatric nurse or a psychiatrist. She also did not think the residents would be able to manage a budget. She was worried that Ms D’s mental health would deteriorate rapidly without the current level of support.

Assessment October 2019

24. The Council assessed Ms D’s needs on 22 October 2019 and formulated a care plan. The assessment said Ms D only had only one eligible need under the Care Act which meant she would not be eligible for support. However, the document then said under the heading ‘support reason’ that Ms D needed mental health support and was ‘to continue to reside in supported housing to enable her to live independently in the community to meet all her identified needs.’
25. Oddly, the care plan identified four eligible needs which contradicted the assessment.
26. The care plan said:
• Maintaining a habitable home environment – eligible need. Ms D was unable to maintain a habitable home environment and staff had to check Ms D every day to monitor and manage the home environment. Staff also carried out an intensive home management check once a month. Ms D used cleaning products in excess and staff had to monitor this regularly as it was an indication that her mental health was deteriorating.
• Being able to make use of the home safely – eligible need. Ms D was able to use her home safely and rarely required staff to support her. She would need occasional support to ensure her safety once the current support stopped.
• Developing and maintaining family or other personal relationships – eligible need. Ms D could visit friends and relatives independently, but needed support as a key holder for the drop in at the house so she could maintain good relationships with other tenants.
• Making use of necessary facilities or services in the local community – eligible need. Ms D was able to access the local community but needed support to access the wider community. She was unable to attend appointments so she needed help in attending hospital or medical appointments.
• Managing and maintaining nutrition – no eligible need.
• Maintaining personal hygiene – no eligible need. Ms D was able to wash herself independently, but staff had to monitor whether her skin was inflamed because of excessive use of hygiene products as this was an indicator of Ms D becoming mentally unwell.
• Managing toilet needs – no eligible need. However, Ms D may sometimes purge food after a meal so staff encouraged her to stay in the drop-in for at least an hour to reduce that risk.
• Being appropriately clothed – no eligible need. Ms D was able to dress and undress independently but she would wear stained clothing and dress inappropriately. Staff would remind her to change her clothes.
• Additional support need: Staff issued Ms D with one week’s supply of medication each week. Staff monitored and managed Ms D’s compliance with medication.
27. In terms of risk, the social worker said Ms D’s risk of self-neglect/harm was low because of the staff support she received at House K and the continued monitoring of the risk. In the past, the risk had fluctuated according to Ms D’s wellbeing and had been significantly high, but Ms D was now stable and cooperated with taking her medication.
28. The care plan offered Ms D one hour support a week by a care agency.
29. Ms C made a formal complaint to the Council on 5 November 2019 and said:
• Ms D had been sectioned several times because of her mental illness. It had taken years of care and support at Home K to achieve an improvement in her illness.
• The consultation was carried out with a level of secrecy and lack of transparency. Relatives were not involved until recently.
• She was concerned about the proposal to stop having paid staff at House K during the day. Tenants now needed an assessment and then had to buy support if they needed it. Ms D had decided that she did not need support, but Ms D did not realise how much she relied upon the support. Ms D needed close monitoring to allow early detection of her deterioration of her mental health.
• The communal lounge was a ‘lifeline’ for tenants as it provided them with a chance at social interaction. Removing the lounge would result in growing isolation which would affect Ms D and the other tenants’ mental health negatively.
• Tenants would be responsible for their own medication and this could be dangerous for mentally ill patients.
30. The Council wrote to Ms D on 8 November to inform her that the plan to amalgamate the three teams had been approved on 29 October 2019. It said she would receive a further assessment before the end of January 2020 and, if she had eligible needs, she would be supported to transition to a new provider. The current support would remain in place until the end of January 2020.
31. The Council replied to Ms C’s complaint on 14 November 2019 and said:
• The Council had carried out an assessment of Ms D’s needs in line with the Care Act. If this identified any needs she would be provided with a care plan. The Council also ensured that it identified any issues under the Mental Capacity Act 2005 or the Section 117 of the Mental Health Act 1983.
• These assessments would address any support needs in terms of administering medication.
• The communal areas would be removed but the Council would assess every person’s needs for socialising and address this in the care plan if a need for support is identified.
• The Council wrote to the tenants about the proposals and the staff also held a meeting with the tenants. The consultation followed the legal guidelines.
32. The Council’s new support package started on 27 January 2020.
33. The Council assessed Ms D again. The document says the assessment happened on 21 January 2020, but the document is dated April 2020 as is the care plan. The assessment and care plan were similar as before except for the following:
• Ms D was supervised at lunch time due to previous purging. She took her evening meal at the drop-in, but this was not supervised as there was no staff in the evening. Ms D’s meal-times may need monitoring to ensure she did not purge.
• The current risk of self-neglect or harm to self/others and property was low because of the support she received from staff. The risk may increase if the support was withdrawn and may need monitoring. In the past the risk of harm had fluctuated according to Ms D’s well-being and may be significantly high.
34. The plan was for support staff from an agency to monitor Ms D 3 hours a week starting from 11 April 2020.
35. I spoke to the manager as part of my investigation. She explained the Council’s actions further. She said the Council had approached the housing association which owned the flats to take over the intensive housing management (IHM) role.
36. The housing association decided not to rent out the eighth flat but to maintain this flat as an office for its IHM staff.
37. The housing association calculated that it should provide around three to four hours IHM support per tenant per week. As there were seven tenants in the block and as its IHM office was based at the house, it meant that an IHM staff member was available during the week on most days.
38. Ms D received her Care Act support from the Council in addition to this IHM support.
39. Sadly, Ms D became ill in the following months (unrelated to the mental illness) and this affected her ability to live independently. The Council re-assessed Ms D in August 2020 and Ms D moved into a care home following that assessment.

Analysis

40. I have first considered the complaint that there was insufficient consultation about the proposed changes.
41. The formal consultation related to the proposal to amalgamate three teams into one team. The Council gave a short deadline for the consultation (two weeks) and only wrote directly to the tenants affected. As some of the people affected had learning difficulties or mental health problems, I am of the view that it would have been good practice for the Council to offer the tenants a longer time to reply and to try to involve their family or support network earlier on in the consultation.
42. The proposed change from three teams into one team was not really, in itself, a problem. If the new unified team had taken over all the roles from the three separate teams, the amalgamation would have had no effect on the tenants.
43. The real change, as far as Ms D was concerned, was that the new unified team was no longer going to provide the direct support that she had been receiving for so many years. But Ms D did not know what the new support would be until the Council had carried out assessments of her needs under the Care Act. Therefore, it is difficult to see how Ms D could give an informed opinion on the proposed changes if she did not know, at the time she was consulted, what effect the changes would have on the support she would receive.
44. I have also considered how the Council assessed Ms D’s needs and the support plan that was put in place. The Ombudsman cannot say what Ms D’s care plan should have been. Only the Council can do this, based on its assessment of Ms D’s needs. The Ombudsman can only consider whether the Council has acted in line with the relevant legislation, guidance and policy in making its decisions.
45. Ms D’s living situation was slightly unusual. Ms D was living in a setting which was similar to supported housing and I note that some of the Council’s documents referred to Ms D’s home as supported housing. Supported housing is often provided to people with learning disabilities or mental health problems as part of their Care Act provision. It often helps people who can carry out the tasks of daily living but need some low level but frequent support or supervision to do so.
46. Unusually, the support Ms D received was not linked to any Care Act provision, but was provided under IHM. Therefore, the Council did not have a statutory duty, as far as I am aware, to provide this IHM support. But of course, the Council may have had a duty to provide support under other provisions such as the Care Act 2014 or the Mental Health Act 1983 which is why it had to carry out the assessments to decide what the provision would be.
47. The Council first assessed Ms D’s needs in October 2019. The Council carried out the assessment in line with the Care Act. It considered the different outcomes/needs and decided whether Ms D met the criteria.
48. However, it is not clear, from the documents that I have seen how the Council concluded that the proposed care plan would meet the needs it had identified.
49. The Council’s assessment said Ms D was not eligible for support under the Care Act because the Council had only identified one eligible need and the threshold for support was three identified needs. However, the assessment also said Ms D needed to live in supported housing to meet her mental health support needs. That therefore suggested there was an identified need but it was met by supported housing.
50. In contrast, the care plan identified four eligible needs. But it was not clear from the care plan how the needs would be met.
51. For example, in terms of ‘maintaining a habitable home environment’, the plan said staff had to check Ms D every day to monitor and manage the home environment. Similarly, the assessment said Ms D needed support on a daily basis to ensure her safety within the home. Ms D also needed support to attend medical and hospital appointments. This was in addition to the need for Ms D to live in supported housing so she could continue to have mental health support,
52. There is no explanation how one hour support a week would meet these needs. Particularly as, when the assessment was carried out in October 2019, the Council did not know yet what IHM support the housing association was going to provide to Ms D so it would be difficult to include this in the consideration of the care package. Therefore, it is not clear from the assessment and the plan how the Council could meet the identified needs in one hour a week. This lack of clarity is fault.
53. However, I accept that, although the assessment and plan were dated October 2019, the support did not actually change until the end of January 2020 and, at this stage, the housing association IHM’s support would have started so, in reality, Ms D received more support than the one hour a week.
54. The assessment in April 2020 identified that Ms D needed three hours of Care Act support a week. The identified needs in the care plan were exactly the same as the needs from the October plan which suggests the Council agreed that the previous support had been not sufficient to meet the needs.
55. It is difficult to say what injustice Ms D has suffered by the fault. The main injustice is the uncertainty created by the unclear communication in the initial assessment and care plan as it is not clear whether the initial care plan fully met Ms D’s needs during the two and a half months before the care plan was changed in April 2020.

Back to top

Agreed action

56. The Council has agreed to apologise to Ms C and Ms D in writing and to pay Ms D £150 to reflect the injustice she suffered from the fault.

Back to top

Final decision

57. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Back to top

Investigator's decision on behalf of the Ombudsman