The Ombudsman's final decision
Summary: There was no fault in the way the Council considered Mrs X’s request for increased care hours. Therefore, the Ombudsman cannot question the merits of its decision.
The complaint
Mrs X complains the Council refused to increase her allocated care hours.
The Ombudsman’s role and powers
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 how the organisation made its decision, 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: considered the complaint and discussed it with Mrs X; considered correspondence between Mrs X and the Council, including the Council’s response to the complaint; made enquiries of the Council and considered the responses; taken account of relevant legislation; offered Mrs X and the Councill an opportunity to comment on a draft of this document, and considered the comments made.
What I found
Relevant legislation Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances.
The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. 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.
Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.
Key facts Mrs X is registered blind and has various health conditions. She lives with her husband and four school-age children. She is currently allocated 42 care hours per week, paid via a direct payment. She says this is insufficient to meet her needs and does not fully support her role as a parent.
On 23 February 2023 Mrs X contacted the Council to request an increase in her allocated care hours. An officer from social services telephoned Mrs X on 7 March 2023, to say it would allocate an assessor as soon as possible Mrs X suggested the Council wait until after Ramadan. Two days later, Mrs X sent an email to the Council asking why her previous assessor could not be allocated to her. An officer from social services telephoned Mrs X to explain its reviewing system and said the previous officer was unavailable.
On 22 March 2023, Mrs X sent an email to the Council setting out her reasons for requesting additional hours.
An assessment officer from social services visited Mrs X on 22 March 2023. I have had sight of the assessment. It is comprehensive, detailed and completed in accordance with the Care Act. The assessor discussed a ‘time and task’ assessment with Mrs X, and explained this would provide clarity on the support she needed. Mrs X declined. The assessor also suggested a referral to a sensory team for support in managing and becoming more independent with some tasks. Mrs X declined.
Mrs X had a further telephone discussion with the assessor on 28 March 2023. The assessor reiterated the need for a ‘time and task’ assessment and the benefits of a referral to the sensory team. Mrs X again refused saying a ‘time and task’ assessment would be intrusive. The officer sent Mrs X an email the same day confirming the offer.
Mrs X sent an email to the Council reiterating her reasons for her request and setting out why she considered a ‘time and task’ assessment inappropriate. An officer from social services telephoned Mrs X but received no answer. The officer decided to postpone contact until after Ramadan.
An officer spoke to Mrs X on 28 April 2024, Mrs X confirmed her telephone had been switched off during Ramadan. Mrs X said she had been using additional support hours to meet her needs. The officer explained the hours were not agreed and again suggested a ‘time and task’ assessment. Mr X agreed to the assessment.
The Council made a referral to an independent living service (ILS) for a ‘time and task’ assessment on 2 May 2023. An Occupational Therapist (OT) was allocated the following day.
The OT telephoned Mrs X on 11 May 2023, but the call was unanswered. The OT called again on 16 May 2023 to arrange a date for the assessment. Mrs X was reported to be reluctant to arrange a date. The OT advised Mrs X her request for increased support hours could not be considered until the assessment was complete. Following a further telephone call a few days later Mrs X agreed the assessment could commence on 24 May 2023.
In addition to the OT, the Council allocated an assessment officer to reassess Mrs X’s care needs.
The reassessment of Mrs X’s care needs took place on 23 May 2023. I have had sight of the assessment. It is comprehensive, detailed and completed properly.
The OT visited Mrs X on 24 May 2023 and completed the ‘time and task’ assessment. I have had sight of the assessment. It is comprehensive, detailed, and completed properly.
The Council considered the outcome of both assessments and concluded there was no basis for increase in care hours. An officer from social services wrote to Mrs X on 28 May 2023 to inform her.
Mrs X expressed her dissatisfaction and said she intended to contact the Ombudsman.
On 30 June 2023 a senior officer sent Mrs X an email offering her an independent appeal hearing and an independent advocate. Mrs X accepted both offers.
On 4 July 2023, Mrs X was provided with an updated support plan. She told the Council she had continued to use hours above those allocated and asked when a resolution would be found.
The Council referred Mrs X to an advocacy service on 7 July 2023. The service refused the request, saying Mrs X had support from her husband. The Council suggested this may be a conflict of interest.
The advocacy service confirmed to the Council it would provide Mrs X with advocacy services, and asked if she would consider a male advocate. Mrs X requested a female advocate. The Council told Mrs X there may be a wait.
Mrs X contacted the Council twice in August 2023 enquiring when an advocate would be appointed. On both occasions the Council contacted the advocacy service chasing the referral.
On 27 September 2023, the advocacy service informed the Council that Mrs X did not meet its criteria for advocacy services, and it was closing the referral. The Council met with the advocacy service, but this did not change the situation. Mrs X was informed.
In October 2023, Mrs X submitted a formal complaint about the outcome of the assessments and the Council’s refusal to agree an increase in care hours. The Council dealt with this under stage 1 of its complaint procedure.
The Council responded on 24 November 2023. It invited Mrs X to attend an appeal hearing. Mrs X accepted and submitted a statement for the panel’s consideration prior to the hearing.
The appeal hearing took place on 12 December 2023. I have had sight of the minutes of the meeting. Mrs X attended along with her personal assistant; three Council officers were also present. The minutes of the hearing are detailed and record the panels consideration of the request, the completed assessments, Mrs X’s statement and the points she presented on the day.
The panel concluded Mrs X did not require an increase in allocated care hours. It wrote to her on 19 December 2023 informing her of its decision.
Mrs X was dissatisfied and submitted a further complaint, which the Council dealt with under stage 2 of its complaint’s procedure. The Council responded on 27 December 2023 reiterating its position. Both complaint responses are detailed and clearly explain the reasons for the Council’s decision.
Mrs X remains dissatisfied. She says the Council expects her to compromise on her care and cultural needs. She says the lack of care provision is affecting her mental and physical health and causing her financial detriment.
Analysis It is not the Ombudsman’s role to decide what services a person is entitled to receive. The Ombudsman’s role is to establish if the Council has assessed a person’s needs properly.
In this case, I find no fault by the Council in the way it considered Mrs X’s request for additional care hours. It responded in a timely manner and undertook two separate assessments. Both assessments were completed in accordance with the Care Act.
At the appeal hearing Mrs X was able to present her case and explain the reasons for her request. The Council’s panel considered all relevant information then came to a professional judgement that Mrs X did not require additional care hours. This was a decision the Council was entitled to make. There was no fault in this process.
Mrs X may disagree with the Council’s decision, but that does not make it a wrong decision.
The High Court has confirmed that an individual’s wishes are not the same as their needs and wishes are not the paramount consideration. A council has to have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin)) Where there is no fault in how the Council came to its decision, we cannot question the merits of its decision.
Final decision
There was no fault in the way the Council considered Mrs X’s request for increased care hours. Therefore, the Ombudsman cannot question the merits of its decision.
It is on this basis; the complaint will be closed.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman