The Ombudsman's final decision
Summary: There was no fault in the Council’s decision not to provide Mr X with formal support, despite assessing he had eligible care needs. The Council should have assessed Mr X’s daughter as a potential young carer while she lived with him. The Council’s decision to close the case before it had completed all agreed actions to help support Mr X was fault, which caused uncertainty. The Council has agreed to apologise and reassess Mr X, his daughter and anyone else that provides him support.
The complaint
Mr X complains about the Council’s decision not to provide him support, despite assessing that he had eligible care needs. He is also unhappy the Council has not considered the support his daughter might need as his carer. Mr X would like the Council to reconsider its decision and provide him with direct payments so he can choose how his needs are met.
What I have investigated Mr X has concerns about his social housing accommodation which relate to disrepair and his need for adaptations to help meet his needs. I have explained at the end of this statement why I have not investigated these concerns.
The Ombudsman’s role and powers
We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) If we are satisfied with an organisation’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)
How I considered this complaint
I have spoken to Mr X and considered the information he has provided in support of his complaint.
I have considered the information the Council has provided in response to my enquiries.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant guidance Assessment Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
Care Plan The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. 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.
There are three main ways a personal budget can be administered: as a managed account held by the council; as a managed account held by a third party; or as a direct payment. (Care and Support Statutory Guidance 2014) Carer’s Assessment Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014) Young carers are children under 18 with caring responsibilities and they are entitled to be assessed until the Children Act 1989 and the Children and Families Act 2014. Councils have a duty to assess ‘on the appearance of need’ (i.e without a request having to be made). Councils also have a general duty to take reasonable steps to identify young carers in their area.
Council must involve the child with caring responsibilities, their parents and any other person the young carer requests in the assessment process. The assessment itself must look at whether the young carer wishes to continue caring, and whether it is appropriate for them to continue caring. When doing this they have to consider any education, training, work or recreational activities the young carer is or wishes to participate in.
Where a young carer’s eligible needs are identified as requiring support, councils will have to: provide support directly to the young carer; or, demonstrate that the ‘cared for person’s’ assessment has provided adequate care and support to prevent inappropriate care being required from the young carer.
What happened Mr X suffered a brain injury in 2008 and was diagnosed with a pancreatic condition a few years later. Mr X’s health conditions cause difficulties with his memory, processing skills, sleep and cognition. Mr X can also experience difficulties with continence and abdominal pain. He lives in adapted social housing and receives help and support from his family and friends.
The Council’s Adult Social Care Team has been involved with Mr X since 2014 and has at various points completed needs assessments for him. This has included times when his daughter has lived with Mr X from the ages of 16 to 18. In early December 2021, an Occupational Therapist (OT) from the Council completed a needs assessment with Mr X.
The OT identified Mr X had eligible care needs relating to: maintaining and managing nutrition; being appropriately clothed; safely making use of his home; developing and maintaining family or other personal relationships; accessing work, training, education or volunteering; and, making use of services in the community.
The OT concluded Mr X’s eligible needs could be met through signposting to appropriate support agencies in his local area, rather than through formal care support funded for by the Council. The OT was keen to ensure Mr X maintained the level of independence and autonomy over his own care and needs to prevent the risk of deskilling.
The OT identified a number of actions that they referred to other agencies for completion. The OT ended their involvement with Mr X in February 2022 after they had not heard further from him. Actions relating to applications to charities for kitchen appliances, obtaining a hand device to help Mr X with injecting pain medication and adaptations to his kitchen to improve access remained outstanding when the OT closed the case. The Council invited Mr X to come back to it if he later decided to pursue these actions.
In December 2021, Mr X made a complaint to the Council about its decision not to provide him with a direct payment to purchase the support he felt he needed. The Council appointed a Senior Officer to investigate Mr X’s concerns, who spoke with him about his complaints.
The Council issued its final complaint response and a copy of the Senior Officer’s investigation report to Mr X on 22 December 2021. The Council agreed with the Senior Officer’s conclusions not to uphold the four elements of Mr X’s complaints which related to not explaining or providing direct payments, a failure to properly assess needs and not properly considering the recommendations made by medical professionals. The Council apologised for not providing clearer information to Mr X about direct payments when he first asked and said it would review procedures for ‘front door’ Adult Social Care staff.
Mr X brought his complaint to us in February 2022 because he remained dissatisfied with the Council’s handling and responses.
Was there fault causing injustice?
The Council completed its needs assessment of Mr X in line with statutory guidance and ensured he was involved in the assessment process. While I understand Mr X disagrees with the conclusions the Council reached, I have no grounds question the merits of a decision that has been made without procedural fault.
I am however concerned at how quickly the Council closed its case for Mr X on this occasion, particularly where there were outstanding actions left to complete. It is clear from Mr X’s complaints he wished to have its assistance in obtaining the support it had said it would work with him to obtain from other agencies. This was to be fault that caused uncertainty and frustration to Mr X. I do however welcome the Council’s offer to reassess Mr X now given his ongoing concerns.
In response to our enquiries, the Council accepts that it should have considered the extent of Mr X’s daughter’s caring role while she lived with him. The Council failed in its duty to identify Mr X’s daughter as a potential young carer in its area and to consider what support she may have needed.
Mr X has told us that his daughter has now returned from university and continues to provide him with some support despite no longer living with him. My recommendations below include the Council assessing Mr X’s daughter as a potential adult carer.
There was no fault in the Council’s decision not to offer Mr X direct payments. This is because the most recent needs assessment of Mr X did not identify any care and support the Council should formally provide. The absence of such care and support means there is no requirement for direct payments.
Agreed action
Within one month of my final decision, the Council has agreed to: apologise to Mr X for the uncertainty caused in closing his case before it had completed all outstanding actions; arrange to reassess Mr X’s needs with a view to completing all actions with other agencies before case closure; and, arrange to assess Mr X’s daughter and any other family or friends providing support to him as potential carers.
The Council should provide us with evidence that the above recommendations have been completed.
Final decision
I have completed my investigation and uphold Mr X’s complaint. Mr X was caused injustice by the actions of the Council and it has agreed to take action to remedy that injustice.
Parts of the complaint that I did not investigate Mr X has concerns about his social housing, about which he has started court action against the Council. Because of this, we have explained to Mr X that we are unable to include these concerns in our investigation.
Investigator's decision on behalf of the Ombudsman