The Ombudsman's final decision
Summary: Mr X complained the Council failed to meet the care and support needs of his brother, Mr Y. The Council was at fault in how it assessed Mr Y’s needs, recorded the support it would provide, kept the support under review, and kept Mr X updated. This resulted in avoidable distress to both Mr X and Mr Y, and time and trouble for Mr X, for which the Council agreed to apologise and pay a financial remedy. It also agreed to discuss Mr Y’s support needs with him, review relevant procedures, and issue reminders to its staff.
The complaint
Mr X complained on behalf of his brother, Mr Y. Mr X said the Council failed to meet Mr Y’s care and support needs when Mr X asked for support in March 2021. Mr X said the Council: failed to properly assess Mr Y’s mental capacity; delayed Mr Y’s needs assessment and did not properly consider his needs; delayed the support provided to Mr Y and did not meet his needs as it did not provide support with money management; and failed to involve Mr X or keep him updated.
Mr X said because of this Mr Y experienced significant distress and financial difficulties, and their elderly mother had to lend Mr Y money which caused her distress. Mr X said he spent significant time and trouble trying to resolve the issues. He wanted the Council to: recognise and apologise for its failings; reassess Mr Y’s care and support needs and mental capacity, ensuring involvement from his family and clinicians; and support Mr Y to claim his missed benefits so he could repay his mother and resolve his financial difficulties.
The Ombudsman’s role and powers
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) We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (Local Government Act 1974, section 26A or 34C) We cannot question whether an organisation’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) This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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 considered: information provided by Mr X and discussed the complaint with him; documentation and comments from the Council about its policies and its involvement with Mr Y; relevant law and guidance; and the Ombudsman’s Guidance on Remedies .
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
Mental capacity The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes when and how to assess a person’s capacity to make a decision, and how to make a decision on behalf of somebody who cannot do so.
A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision: because they make an unwise decision; based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or before all practicable steps to help the person to do so have been taken without success.
If someone’s capacity is in doubt, the council must assess their ability to make a decision. How it assesses capacity may vary depending on the complexity of the decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
Needs assessment and care and support planning 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.
Section 19 of the Care Act 2014 provides councils with the powers to meet urgent needs where they have not completed an assessment. Where an individual with urgent needs approaches or is referred to a council, it should provide an immediate response and meet the individual’s care and support needs. For example, where an individual’s condition declines rapidly or they have an accident, they will need a swift response to ensure their needs are met. (Care and Support Statutory Guidance, section 6) The Care Act 2014 and associated Care and Support Statutory Guidance set out various legal requirements about the assessment process, including that councils must: carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs; involve the individual, any carer(s), and any other person the individual wants to be involved; and consider whether there is anyone appropriate who can support the individual to be fully involved, if it considers they have substantial difficulty in engaging with the assessment process. If there is no one appropriate, it must arrange for an independent advocate to support and represent the person in the assessment and care and support planning.
The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what 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.
Section 4 of the Care Act 2014 requires councils to have services providing information and advice about social care in their areas. This includes information about choice of and access to care providers, and accessing independent financial advice related to social care. Councils must ensure the information provided is enough to enable people to: understand the possible effect on their finances of social care choices; and make plans for meeting social care needs.
Councils should support individuals with care and support needs with money management. Support may include information and advice about welfare benefits, good money management, basic budgeting, and debt management. Where a council cannot provide this information itself, it should help people access it. (Care and Support Statutory Guidance, section 3) The Council provides a money management service through a third-party provider for people who need additional support to manage their daily finances.
This provider’s website says it receives referrals from a council’s social work team or the Department of Work and Pensions (DWP).
Direct payments Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council has a key role in ensuring people have relevant and timely information about direct payments so they can decide whether to ask for them. The Care and Support Statutory Guidance says: the gateway to receiving a direct payment must always be through a request from the individual. Councils must not force people to take a direct payment against their will and should not place people in a situation where a direct payment is the only way to receive personalised care and support; where an individual asks for a direct payment, the Council should support them to use and manage the payment properly; councils must tell people during the care and support planning stage which of their needs direct payments could meet; and councils must consider requests for direct payments made at any time and have clear and swift procedures in place to respond to them.
The Council’s website says it provides a ‘managed account’ service for direct payments via a third-party provider when needed, such as when an individual has difficulty accessing a bank account or managing the financial aspect of direct payments. It says a ‘managed account’ is intended to help an individual manage the financial aspects, but not arrange for the care and support provision itself.
Reviews Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Councils should: review plans at least every 12 months; consider a light touch review six to eight weeks after agreeing the first or revised care plan; immediately conduct a review if there is any information or evidence that suggests circumstances have changed in a way that may affect the effectiveness, appropriateness, or content of the plan; and carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met.
Councils must: involve the individual, any carer(s), and any other person the individual wants to be involved in all reviews, and take all reasonable steps to agree any changes; and conduct a review if the individual or a person acting on their behalf makes a reasonable request for one.
(Care and Support Statutory Guidance, section 13) What happened In March 2021 Mr X asked the Council to complete a Care Act assessment for Mr Y. He told the Council Mr Y was deaf, had communication difficulties and needed support with managing his finances including bills and benefits claims. The Council asked for more information from Mr X, contacted Mr Y, and then allocated the case to a social worker. It arranged a face-to-face needs assessment with a British Sign Language (BSL) interpreter, which happened eight weeks after Mr X first contacted the Council. The Council said that waiting for an interpreter to be available caused delays of a few days.
During the needs assessment, Mr Y told the Council he was having difficulty understanding his benefits and managing his finances, and needed support. The Council assessed his needs and decided he was eligible for support. It decided a “weekly three-hour session with a BSL Personal Assistant to support with managing finances; sorting out access to relevant benefits; understanding correspondence, etc” would meet Mr Y’s needs. The Council said it did not formally assess Mr Y’s mental capacity to make decisions about his finances because it did not consider at any point that he lacked capacity to manage his finances independently. It said Mr Y showed during its assessment that he could make decisions about his day-to-day finances and understood the consequences of debt. It only considered he needed support to communicate with others and understand correspondence. On the same day as the needs assessment, the Council referred Mr Y for a financial assessment to decide what his contribution should be to his support costs. The Council updated Mr X following Mr Y’s needs assessment and he told it Mr Y needed support to claim Universal Credit (UC).
Within two weeks of Mr Y’s needs assessment, the Council wrote to Mr Y to schedule an in-person financial assessment with a BSL interpreter with three weeks’ notice. The Council said that waiting for an interpreter to be available caused a delay of a few days. It also said its finance team were not usually carrying out face-to-face assessments at the time due to COVID-19 restrictions. This meant there was a slight delay while it set up its process for this and found a staff member able to attend in person.
The Council considered Mr Y’s case through its group peer review process. It recorded the group had agreed to fund Mr Y’s support via a direct payment, as described at paragraph 20. It proposed this would be a ‘managed account’ as described at paragraph 21, so Mr Y did not have to manage the financial aspect of the support himself. The Council told the Ombudsman it had not yet finalised its decision to fund Mr Y’s care by direct payments at this stage and planned to discuss it with Mr Y. It said before it spoke to Mr Y about this, Mr X told the Council he did not want it to fund the support in this way as he was concerned this meant the support would not be arranged until after the Council’s financial assessment. Because of this, the Council agreed to commission the support directly from a third-party provider, Provider B. The Council started the commissioning process the following day.
The Council told Mr X and Mr Y that Provider B would visit him for an assessment in early June 2021, five days after it commissioned the support. This would have been four weeks after the Council assessed Mr Y as eligible for support. The support worker could not attend due to unforeseen circumstances, so the assessment visit was delayed by two weeks. Following this, the first scheduled three-hour support visit was also delayed by one week, due to the support worker being unable to attend.
Once the support had begun, Mr X continued to tell the Council and Provider B that Mr Y needed support to claim UC, and regularly asked for updates about Mr Y’s support. The support worker first contacted the DWP about Mr Y’s UC claim on its second weekly visit and made an appointment to start his claim. However, the DWP appointment was repeatedly postponed. The Council did not know the reasons for all the delays but some of these were because: a BSL interpreter arranged by Provider B did not attend an earlier appointment with Mr Y which made him and his support worker late for a pre-arranged appointment with the DWP the same day; and an interpreter arranged by the DWP for another of Mr Y’s UC appointments did not turn up, so the appointment could not go ahead.
Six weeks after Mr Y’s support began, Mr X told the Council and Provider B that Mr Y had received a diagnosis of diabetes and needed more support. Provider B acknowledged this information and told Mr X it would support Mr Y with managing his diabetes. The Council did not carry out a review of Mr Y’s support.
Four weeks later, Mr Y’s benefits appointment with the DWP had still not taken place, so Mr X asked the Council to make a UC claim on Mr X’s behalf. The Council said it would consider this if there continued to be issues following the next scheduled DWP appointment.
Mr X contacted the Council again three weeks later as the next DWP appointment had again been postponed for two months. He asked the Council again if it could make Mr Y’s benefits claim for him. He also asked it to re-assess Mr Y’s needs and review his support due to the change in his health needs. The Council: passed Mr X’s comments about the UC claim on to Provider B; and arranged a review of Mr Y’s support. It told Mr X the date of the review and he did not ask to attend.
The Council visited Mr Y for the review three weeks later with a BSL interpreter. Its records show Mr Y said he was satisfied with the support and so it did not propose any changes.
Shortly after the review, Mr X contacted the Council and Provider B again about the issues with Mr Y’s UC claim. Provider B said it could not assist further and asked if the Council could provide any other support with the claim. The Council said Mr X would need to raise the issues with the DWP instead. Mr X then complained to the Council, which responded three days later to confirm its position that he should complain to the DWP.
Within a week of the Council’s complaint response, Mr X told the Council Mr Y’s circumstances had changed again as he had been diagnosed with a serious illness. He asked for details of Mr Y’s UC claim from Provider B so he could seek power of attorney and progress this himself. He then made his complaint to the Ombudsman.
Three months after he told the Council about Mr Y’s serious illness, Mr X told the Council he was concerned it had not re-assessed Mr Y’s needs on this basis and asked it do so. The Council carried out a re-assessment two weeks later.
My findings
Mental capacity The Council did not assess Mr Y’s mental capacity to make decisions about his finances when it assessed his care and support needs. Mr X felt it should have done so. As described at paragraph 11, an individual must at first be presumed to have capacity and should not be treated as unable to make a decision before “all practicable steps to help the person to do so have been taken without success”. The Council would only normally need to carry out a Mental Capacity Assessment (MCA) where an individual’s capacity is in doubt.
It is not our role to decide whether a person has capacity; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly. As described at paragraph 5, we cannot question a decision the Council has made if it followed the right steps and considered relevant evidence. I have considered the steps the Council said it took to consider this issue, and the information it said it took account of. I am satisfied there was no fault with how the Council considered whether to assess Mr Y’s mental capacity. There was no evidence available to the Council when it carried out its needs assessment that suggested Mr Y could not make relevant decisions for himself.
How the Council arranged the support from Provider B As described at paragraph 20, councils must only provide a direct payment on request, and should not place people in a situation where this is the only way to receive their care and support. Mr Y did not ask for a direct payment for his support and the Council did not discuss its proposal to fund his support in this way with him.
The Council’s notes of the peer group meeting in which the support was agreed said “Personal Assistant on managed DP [Direct Payment] to be put in place…”. Mr Y’s social worker then sent a referral to the finance team which said, “I will make this a managed DP [Direct Payment] account via a relevant agency”. The Council said that although it proposed a direct payment, it had not yet finalised its decision when Mr X asked it to reconsider this. It said it planned to discuss this with Mr Y first and would have made other arrangements if Mr Y said he did not want to use direct payments.
I accept the Council’s explanation that it did not intend to implement direct payments without consulting Mr Y, and was open to different methods of funding. However, I consider the notes the Council recorded were confusing. The notes, as written, suggest the Council had already decided it would provide Mr Y with a direct payment. This was fault. However, the Council quickly considered Mr X’s request to change the funding method and actioned its referral to Provider B the following day. Therefore, this fault did not cause Mr Y or Mr X an injustice.
I consider there was a lack of clarity about the support to be provided to Mr Y by Provider B. Mr Y’s support plan said he would receive a “weekly three-hour session with a BSL Personal Assistant to support with managing finances; sorting out access to relevant benefits; understanding correspondence, etc”. The Council recorded the support it would source from Provider B as “Support by BSL Personal Assistant with managing correspondence; sorting out relevant benefits; managing finances/bills etc and not falling into debt; saving up and going on holiday (covid permitting)”. I do not consider this information was clear enough about whether the support worker provided should be a qualified BSL interpreter. This led to confusion for Mr X in understanding what support Mr Y was supposed to receive. The support worker from Provider B did not act as a BSL interpreter for Mr Y. Instead, they used an online BSL interpreter service and booked an in-person interpreter to attend for certain appointments.
The Council did not have a contract for services in place with Provider B, and commissioned a one-off package of support specifically for Mr Y. The Council told us when this happens it would usually use a generic contract for services, which would point to the person’s support plan for more detailed service delivery requirements. However, as described in the above paragraph, I am not satisfied Mr Y’s support plan was clear enough about the support to be provided. Also the Council was unable to locate a generic contract for the arrangement in place with Provider B for Mr Y. Therefore, I am not satisfied the Council had a clear agreement in place with Provider B about this package of support, or properly agreed the requirements and expectations for the service to be provided. This was fault. There were several occasions when both Mr X and the Council had to contact Provider B to ask for updates and clarify the support it should be providing to Mr Y. I consider if the Council had produced a clear written agreement when it commissioned the service from Provider B, it could have prevented the confusion this caused to Mr X.
Support with benefits and money management Mr X said the Council did not properly consider its assessment of Mr Y’s needs and should have provided support with money management. As described at paragraph 18, councils should have regard to how they can help people access information and advice on money management, including benefits advice, where this is needed. As described at paragraph 19, the Council does have a money management service.
The Council recognised it did not record at the point of assessment any consideration of whether it should refer Mr Y to its money management service, or for benefits advice. However, it later said it did consider this and decided not to refer him because: “[Mr Y] was assessed as not eligible for [the money management service] service because he [was] considered to be able to manage his finances independently and as having the mental capacity to do so, requiring support with understanding and responding to more complex correspondence.”
I considered the Council’s view that since Mr Y had the “mental capacity” to manage his finances this meant he did not need support managing or understanding his finances. As described at paragraph 10, assessment of mental capacity relates to a person’s ability to make a specific decision. The ability of an individual to effectively manage their finances depends on more than whether they have the capacity to make decisions about their finances. Mr Y having capacity to make decisions about his finances did not mean he could manage his finances without support.
“the social worker exercised professional judgement about the appropriate support for [Mr Y] based on his needs assessment and [their] knowledge of the services available. [They] also checked whether there were any other services which might be suitable locally. [Mr Y] understood the position relating to his benefits and did not require support with managing his money (in the sense of decision-making), budgeting or debt management. What he required at this stage was support with understanding and responding to correspondence and navigating the benefits systems and processes” and “We do not accept that Mr Y needed information and advice about his benefits”.
However, this contradicts the information the Council recorded at the time it assessed Mr Y’s needs, where the social worker carrying out the assessment: recorded that Mr Y was “struggling to manage his finances and understand what benefits he needs to apply for” recorded that Mr Y told the Council “My benefits were cut in November last year. I do not know why”; and when completing an internal referral to the finance team to ask it carry out a financial assessment for Mr Y, said, “If [Mr Y] could be supported by [the Council’s] benefits advice too, that would be very helpful” The Council said its money management service “involves providing direction to develop an individual’s skills by setting them tasks, and helping them plan and prioritise. The individual then does these actions themselves.” Based on this description I accept the Council’s explanation that Mr Y would not have been eligible for this service. However, having considered the different accounts and on the balance of probabilities, I am not satisfied the Council properly considered what Mr Y’s needs were in terms of money management and benefits advice or explained how the support it arranged met the needs it identified. This was fault.
There is no evidence Mr Y later struggled with paying his bills or managing his household expenses, so I am satisfied Mr Y was not caused an injustice by any lack of money management support. However, I do consider this caused confusion and distress for Mr X because he was not assured that the Council had assessed Mr Y’s needs properly and planned appropriate support. The Council should remedy this injustice.
The evidence shows, Mr Y did have prolonged problems making a claim for benefits. While the support the Council arranged helped Mr Y communicate and contact the DWP, the Council had a separate duty to arrange or signpost Mr Y to appropriate information and advice. It identified in its needs assessment that Mr Y would have benefited from advice on benefits. As described at paragraph 45(b), when the Council referred Mr Y for a financial assessment it did record that benefits advice “would be very helpful” for him. This internal message was the only evidence of any consideration the Council gave to referring or signposting Mr Y to benefits advice. Although the finance team did ask the DWP if it could visit Mr Y and support him with his benefits, the DWP said it could not help and he should contact Citizens Advice. The Council did not tell Mr Y or Mr X that it had asked the DWP to support him and it had declined to do so, nor did it consider other options for helping Mr Y get the advice he needed.
I cannot say that, if the Council had helped Mr Y access appropriate advice about his benefits, he would have successfully made his claim sooner. However, there remains uncertainty about what the outcome would have been, which the Council should remedy.
Mr X said the support commissioned by the Council did not meet Mr Y’s need to have his benefits issues resolved and felt the Council should have made Mr Y’s benefits claim on his behalf. It was the responsibility of the DWP, not the Council or Provider B, to arrange a BSL interpreter for Mr Y’s DWP appointments. The Ombudsman does not have jurisdiction to investigate the actions of the DWP or its Jobcentres. Also, the Council did not have a duty to secure an income for Mr Y or make benefits claims on his behalf. It could not have made a benefit claim for Mr Y without the DWP first agreeing that Mr Y could not claim for himself. The DWP told the Council it had previously decided Mr Y did not need an appointee. Therefore, it is unlikely the Council would have been able to claim for Mr Y even if it had tried to do so.
Review of Mr Y’s support As described at paragraph 22, the Council had a duty to keep Mr Y’s support plan under review to ensure it was meeting his needs. Mr X told the Council several times he thought Mr Y’s support was not meeting the outcomes the Council had identified in his needs assessment, to manage his finances and access benefits. When Mr X asked the Council to claim Mr Y’s benefits on his behalf, it told him it would consider doing so if the issues with Mr Y’s claim continued. However, the Council did not properly engage with Mr X’s concerns about this at any point and make a considered decision about whether: the delays in Mr Y’s benefits claim were caused by issues with the support it commissioned, or a lack of appropriate advice and information; or Mr Y’s inability to claim benefits was related to his care and support needs and could be addressed by the Council referring or signposting him to other services.
This was fault.
I am also satisfied there was fault in how the Council kept Mr Y’s support under review because: it did not consider a light touch review of Mr Y’s support plan after six to eight weeks, even though Mr X raised issues with the support provided during that time; and as described at paragraph 30, six weeks into Mr Y’s support, Mr X told the Council and Provider B Mr Y had received a diagnosis of diabetes. The Council said it considered this information and decided a review of Mr Y’s support was not necessary, as it was sufficient that Provider B was aware of the information. I note it was Mr X who told Provider B about this, not the Council. I am not satisfied the Council properly considered this information and whether it should review Mr Y’s support, or followed up on this with Provider B. This was fault. However, as described in the below section about injustice caused, I do not think this fault caused Mr Y, or Mr X, an injustice.
The Council reviewed Mr Y’s support in November 2021, following a further request from Mr X. The Council’s records of the November 2021 review show Mr Y said he was satisfied with the support and so it did not propose any changes. However, before this review, the Council told Mr X it would consider Mr Y’s recent diagnosis of diabetes, and whether it should increase his weekly support hours because of this. It did not consider this or discuss Mr Y’s new needs with him as part of the review. I am also not satisfied this review considered the various concerns Mr X had raised with the Council about Mr Y’s support. Given Mr X had raised concerns about this several times, I would have expected the Council to consider this in its review. I am satisfied the Council did not consider everything it should have in this review, which was fault.
Delays As described at paragraph 14, where an individual has urgent needs, a council should respond immediately and meet these needs before completing its assessment. The Council said it ‘triaged’ Mr Y’s case based on the information provided by Mr X, to establish its level of urgency, and did not consider Mr Y’s needs to be urgent. Although the Council’s records showed it triaged the referral, it provided no evidence of how it decided Mr Y’s case was not urgent. However, I am satisfied there was no evidence available to the Council when it carried out this triage that suggested Mr Y’s case needed urgent action. Therefore, I am satisfied the Council’s decision not to meet Mr Y’s needs before making its assessment did not cause him an injustice.
Following Mr X’s first request, the Council was in regular contact with Mr X and Mr Y to arrange the assessment. The longest gap in contact was after the Council told Mr X it would allocate Mr Y’s case to a social worker within two to three weeks, it then took four weeks to do so. I do not consider this to be a significant delay. After the Council allocated the case, it contacted Mr X and Mr Y two days later to arrange an assessment within two weeks with a BSL interpreter. I accept the Council’s explanation that waiting for an interpreter may have caused slight delays and consider lack of availability of an external BSL interpreter to be outside the Council’s control. Furthermore, I do not consider a wait of two weeks for an assessment following allocation to a social worker was unreasonable. I would not have expected the Council to seek an alternative interpreter due to this slight delay. Eight weeks is longer than we would usually expect a council to take to assess an individual’s needs following a referral. However, I do not consider this delay was so significant that I would find fault with the Council’s actions. It was taking steps to action the referral throughout this delay, and was in regular contact with Mr X and Mr Y.
At the time of the needs assessment, there were COVID-19 restrictions in place on indoor mixing. Although not prohibited by law, I recognise it may not have been practical for a needs assessor, financial assessor, and BSL interpreter to visit Mr Y at the same time. Instead, the Council referred Mr Y for a financial assessment after it had completed his needs assessment and actioned this on the same day. This referral stated the financial assessment should be carried out face-to-face with a BSL interpreter, with the assessment date provided to Mr Y “some time in advance”. As explained above, the lack of availability of an external BSL interpreter was outside the Council’s control. I also consider it reasonable that some Council departments were still considering requests for face-to-face appointments on a case-by-case basis, given the COVID-19 restrictions that were in place. Furthermore, I do not consider a wait of two weeks to arrange an appointment following a referral was unreasonable. I also consider it reasonable the Council gave Mr Y three weeks’ notice of the appointment, as Mr Y’s social worker told the finance team he would need advance notice. Mr Y’s financial assessment took place five weeks after his needs assessment. I do not consider this delay to be so significant that I would find fault with the actions of the Council’s finance team. It was in contact with Mr X during this delay.
Once the Council had arranged the support from Provider B, there were some delays in delivery of this service to Mr Y, as described at paragraph 28. I recognise the Council sought updates from Provider B about when the support would start, and when it became aware there had been delays, queried this with Provider B. However, I consider that had the Council had a clear written agreement in place with Provider B, it could have set out a process to ensure Mr Y received the support he needed if a support worker could not attend.
Information and updates provided to Mr X Mr X said the Council failed to involve or update him. The Council spoke to Mr X when arranging Mr Y’s first needs assessment. Mr X said this would need to be a face-to-face appointment with support from a BSL interpreter, so the Council arranged this. The Council told Mr X the date of Mr Y’s assessment in advance, and he did not ask to attend. At the appointment, Mr Y gave the Council permission to share information with Mr X but he did not say he wanted Mr X to act as his representative or be involved in the assessment. As described at paragraph 15, where a council considers an individual has substantial difficulty in engaging with the assessment process, it must consider whether they need support from an appropriate representative or independent advocate. The Council said Mr Y could communicate and engage in the assessment process with the support of a BSL interpreter, so it did not consider he needed support from a representative or advocate. I do not consider the Council to be at fault because Mr X did not attend the needs assessment, or for not arranging an independent advocate for Mr Y. The Council also told Mr X about its November 2021 review in advance, and he did not ask to attend this either.
There were several occasions when the Council, or Provider B acting on its behalf, failed to keep Mr X updated. An example of this was when the Council failed to pass on information it had received from the DWP, as described at paragraph 48. This, and the other times when the Council failed to update Mr X, was fault. When recording the support it would source from Provider B, the Council listed Mr X as the preferred point of contact. However, I consider the lack of a clear written agreement with Provider B meant this had to be repeatedly clarified to Provider B and Mr X was not kept updated as he should have been. Both Mr X and the Council repeatedly had to chase Provider B for updates. In response to our enquiries the Council accepted its communications with Mr X were inadequate and said it wished to apologise for the frustration it caused him.
Injustice caused to Mr Y and Mr X After Mr X brought his complaint to the Ombudsman the Council re-assessed Mr Y’s needs in March 2022 and produced a new support plan. This re-assessment included that: the weekly personal assistant support from Provider B should include support with “understanding nutritional needs as a diabetic”; and Mr Y should also receive added support of two hours a day to support with various activities such as “preparing a hot meal (that meets the criteria of his diabetic diagnosis)”.
Some of the increased support from March 2020 referred to Mr Y’s diabetes diagnosis. Therefore, I considered whether Mr Y may have had care and support needs related to his diabetes that the Council did not consider or address before this re-assessment. The Council said the additional support outlined when it reviewed Mr Y’s needs in March 2022 was because of his more recent serious illness, not because of his diabetes.
On the balance of probabilities, I am satisfied that: the support described at paragraph 60(a) related to Mr Y’s diabetes and not the other serious illness. Although I am not satisfied the Council took any action when Mr X told the Council and Provider B about the diabetes diagnosis in late August 2021, Provider B acknowledged this and told Mr X it would support Mr Y with managing his diabetes. Based on the support Provider B said it would provide with this at the time, I consider the support described at paragraph 60(a) was in place from the point the Council knew about the diagnosis anyway; and the support described at paragraph 60(b) did relate to Mr Y’s other serious illness and not his diabetes. He required help preparing meals due to the pain caused by this new illness.
Therefore, I do not think the Council’s failure to properly consider a review when it was told about Mr Y’s diabetes diagnosis caused him an injustice.
The lack of a clear written agreement between the Council and Provider B meant there was a lack of clarity about Mr Y’s support, and about how Mr X should be kept updated. I consider this caused confusion for Mr X and meant he had to spend time and trouble chasing up the Council and Provider B to ask for updates and clarification about Mr Y’s support. I also consider the occasions when the Council, or Provider B acting its behalf, failed to keep Mr X updated, added to the confusion caused to Mr X. I consider the Council should remedy the avoidable confusion caused to, and time and trouble spent by, Mr X.
However, I do not consider the lack of clarity about the support caused an injustice to Mr Y. I have seen no evidence that Mr Y was dissatisfied with the support. Although the did not carry out the November 2021 review properly, it did seek out and record Mr Y’s views. Ultimately, he told the Council he was satisfied with the support and has continued with it since, including after the Council’s more recent March 2022 re-assessment of his needs.
As described at paragraph 57, I think a clear agreement could have prevented delays to Mr Y’s support starting. However, the start of the support was only delayed by around three weeks. I do not consider this delay caused Mr Y a significant injustice.
Mr X said Mr Y had to borrow money from his mother because of his benefits issues, which caused him distress. When the Council re-assessed Mr Y’s needs in March 2022, he told it he had resolved his benefits issues. Therefore, I consider he was put back in the financial position he would have been in had the benefits claim been made earlier, and so should have been able to repay his mother. However, as described at paragraphs 47 to 49, the Council should act to remedy: the confusion and distress caused to Mr X because he was not assured that the Council had assessed Mr Y’s needs properly and planned appropriate support; and the distress caused by the remaining uncertainty for Mr X and Mr Y about whether Mr Y could have successfully claimed his benefits sooner if the Council had helped him access appropriate benefits advice.
Agreed action
Within one month of my final decision the Council will: apologise to Mr Y and Mr X for the faults identified above; pay Mr Y £200, to recognise the distress caused by the remaining uncertainty about whether he would have been able to successfully claim for his benefits sooner if the Council had helped him access appropriate benefits advice; pay Mr X £150, to recognise: the distress caused by the remaining uncertainty about whether Mr Y would have been able to successfully claim for his benefits sooner if the Council had helped Mr Y access appropriate benefits advice; and the avoidable confusion and time and trouble Mr X spent chasing up the Council and Provider B.
discuss with Mr Y whether he needs the Council to refer or signpost him for advice about benefits, and action this as required.
Within three months of my final decision the Council will: Review its procedures for how it directly commissions one-off care and support packages for individual service users to ensure the requirements and expectations of the package are agreed. In its review it will consider how it will ensure clear information is recorded for third-party providers about: what the care and support is for; and how and when the third-party providers should communicate with and provide updates to the Council, the service user, and their representative(s).
Remind relevant staff that: they should record clear information about all considerations and decisions made about needs assessments, care and support planning, funding of care and support, and keeping care and support under review; where people paying for care and support ask for support with money management and benefits, they should properly consider how the Council can help them access information and advice, and the services which they can signpost or refer people to. They should also fully record this consideration when assessing the person’s needs; they should consider light touch care and support reviews after six to eight weeks, and fully record this consideration; they should consider whether a review is needed when alerted to an individual’s change of circumstances, and fully record this consideration; they should consider whether a review is needed when alerted to potential issues with an individual’s care and support, and fully record this consideration; and they should provide regular updates to service users and their representatives and ensure any important information is passed on.
Final decision
I have completed my investigation. There was fault by the Council which caused Mr Y avoidable distress, and Mr X avoidable distress, time, and trouble. The Council agreed to our recommendations to remedy this injustice, review relevant procedures, and issue reminders to its staff.
Investigator's decision on behalf of the Ombudsman