Summary: There was fault in the way the Council assessed Ms B’s needs for care and support and provided a care plan. There was a lack of clarity and analysis in the documents which meant it was difficult to see what Ms B’s needs were and how they would be met. The Council has re-assessed Ms B twice since then and the care plan remains the same. The Council has therefore remedied the fault and the Ombudsman does not recommend any further remedy.

The complaint

1. Ms B complains that the Council has not properly assessed her needs for care and support and that her care plan does not meet her needs. She says the Council has not responded to her request for direct payments.

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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)

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How I considered this complaint

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

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What I found

Law, policies and guidance

Assessing needs

5. The Care Act 2014 says 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 cost of meeting the needs.
6. The needs assessment decides how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Councils 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.
7. The ten 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.
• Making use of necessary facilities or services in the local community.
• Carrying out caring responsibilities for children.

Review of the care plan

8. The Guidance says there should be a ‘light touch’ review of the plan within 6 to 8 weeks of the initial sign off of the plan. After that, the plan should be reviewed at least every 12 months.

Needs met by a carer

9. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.

Disagreement about the care plan

10. The Guidance says local authorities must take reasonable steps to reach agreement with the person for whom the plan is being prepared.
11. If the plan cannot be agreed, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. The local authority should direct the person to the local complaints procedure.

Direct payments

12. A person can ask to receive direct payments to arrange the care and support themselves and councils must provide this if certain conditions are met.
13. It is expected that most requests to receive direct payments will occur during the care planning stage as this is when authorities must inform the person of the needs that could be met via direct payments. However, local authorities must consider requests for direct payments made at any time and have clear and swift processes in place to respond to the requests.
14. The conditions of eligibility for direct payments are:
• The adult has capacity to make the request, and where there is a nominated person, that person agrees to receive the payments.
• The local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the adult or nominated person.
• The local authority is satisfied that the adult or nominated person can manage direct payments either by himself or herself, or with whatever help the authority thinks the adult or nominated person will be able to access.
• The local authority is satisfied that making direct payments to the adult or nominated person is an appropriate way to meet the needs in question.
15. When the application for direct payments is agreed, the decision should be recorded in the care plan, or support plan. Where refused, the person or person making the request should be provided with written reasons that explain the decision, and be made aware of how to appeal the decision through the local complaints process.

What happened

16. Ms B is an adult who has physical and mental health conditions which mean that she has a need for care and support. She lives in a flat with her adult nephew, Mr C. The Council says Mr C provides some support to Ms B. Ms B says Mr C does not want to provide any support and should not be expected to do so.

2018 care and support plan

17. The Council carried out an assessment of Ms B’s needs in June 2018. The social worker wrote a care plan dated August 2018 which was revised in September 2018. The social worker said Ms B needed care and support to achieve 7 of the 10 outcomes identified in the legislation.
• Maintaining a habitable environment – need to be met by the Council’s support package. Ms B said she could not clean the house, do the washing up or empty the bins because of her physical disabilities.
• Managing nutrition, shopping and preparing meals - need to be met by the Council’s support package. Ms B said she could not go to the shops independently and she could not do online shopping as had no internet access. She relied on food which Mr C brought her after work.
• Managing toilet needs - need to be met by the Council’s support package. Ms B could meet her own toilet needs independently but had additional laundry needs because of continence problems.
• Managing personal hygiene - need to be met by the Council’s support package. Ms B said she needed support with personal care. She said she would often sit on the edge of the bath tub and shower herself this way, but she was worried about falling. Ms B said she found showering independently exhausting and was not able to do so. Ms B said she wanted support to shower every morning.
• Being appropriately clothed - need to be met by the Council’s support package. Ms B said that if she had support with showering, she would need some time afterwards to get dressed as she would be fatigued.
• Making use of services and facilities in the community - need to be met by the Council’s support package. Ms B said she could not go into the community or attend any appointments without support.
• Being able to use the home safely - need to be met by the Council’s support package. The social worker said Ms B was at high risk of falling and would benefit from a Carelink pendant. Ms B said she was not able to pay for this so the social worker said Ms B would be assessed to have this free of charge.
18. The care plan said Ms B was entitled to:
• 2 hours support on 3 days a week. The carer had to administer medication, support Ms B with breakfast if required, support Ms B with personal care, washing and dressing, clean and tidy up and support Ms B with laundry and emptying the bins.
• On Wednesdays one of the hours of support was used to access the community.
19. Ms B says she asked the Council for direct payments in January 2019, but did not receive a reply.

2019 care and support plan review

20. The Council reviewed the care plan in May and September 2019. The social worker noted that Mr C provided some support and she had wanted to talk to him, but had not been able to.
21. The social worker said:
• Maintaining habitable environment – need to be met by a combination of support. The social worker said that the bulk of the support that the agency had been providing was to maintain the home. Mr C also contributed to the cleaning. The social worker said Ms B would have to pay for any extra cleaning privately. The social worker said the home was clean.
• Managing nutrition, shopping and preparing meals - need to be met by a combination of support. Ms B said that, for breakfast, she usually ate something that needed no or minimal preparation. The social worker commented that Ms B accessed the internet when she was there. She therefore thought Ms B should be able to do online shopping. However, she still agreed that Ms B also needed some support for shopping in the community.
• Managing toilet needs - need to be met by a combination of support. Ms B said she had still had continence problems and the social worker advised her to discuss this with her GP. The social worker said the support with the laundry would continue.
• Managing personal hygiene - need to be met by a combination of support. The social worker noted that the agency’s care log showed that the agency rarely provided personal care. The agency workers said they offered Ms B personal care but she declined so the carers mostly did tasks around the house. Ms B said she declined personal care because there was not enough time in the care package. She showered while the carers were at the flat in case she had a fall. The social worker suggested Carelink so that Ms B could shower whenever she wanted.
• Being appropriately clothed - need to be met by the Council’s support package. This included support with laundry which was to be continued.
• Making use of services and facilities in the community - need to be met by a combination of support. Ms B continued to have problems accessing the community because her flat was on the second floor and only had stair access. Ms B had access to Mr C’s car, but she was worried whether he could continue to afford this.
• Being able to use the home safely – eligible need, but Ms B declined the support. The social worker had previously recommended a Carelink service in case of falls. Ms B told Carelink that her landlord would not allow the Carelink service and she had no friends or family nearby who could hold a spare key. The social worker offered to speak to Ms B’s landlord but Ms B declined this offer because she said she would be moving to Council accommodation soon.
22. The plan was:
• The agency would provide 2 hours support 3 times a week. The carers should prompt medication, supervise personal care and offer assistance if required, support with breakfast if required, clean up, tidy up, support with laundry and empty bins.
23. The social worker wrote in the plan that direct payments were not suitable.

Ms B’s complaint and the Council’s replies

24. Ms B complained to the Council in August and October 2019 and the Council replied in September and November 2019. Ms B criticised the content of the plan line by line and said the plan was full of lies. She said Mr C did not want to provide any care and should not be expected to do so against his will.
25. Ms B said the carers should do do the following tasks and the care package of 6 hours did not give them enough time to carry out all the tasks in the care plan:
• Do her laundry, including personal washing, clothes, towels and tea towels, take it to the launderette to be dried, bring it home and put it away.
• Carry out food shopping in the supermarket, bring it home and put it in her cupboards.
• Assist her with a daily shower and daily hair washing.
• Provide her with breakfast, lunch and supper every day.
• Do the washing up.
• Take her out for 1 hour a week.
• Clean the flat. This should include hoovering, mopping the hallway, dusting, wiping window ledges, cleaning the mirrors.
26. Ms B said the carers had never prepared food, done the shopping and rarely provided her with a shower or washed her hair. Therefore, she was suffering neglect by the Council.
27. The Council’s manager replied and said:
• In response to the allegation of lies in the assessment, she said the Council had recorded her emails and had recorded on the assessment that Ms B had amended the assessment for factual inaccuracies.
• Mr C was not expected to provide personal care, but as he was sharing a living space with her, he was expected to provide some domestic support.
• In response to the complaint that there was not enough time to carry out all the tasks in the care plan, the manager said that the priority of the plan was to support Ms B in her personal care needs. However, the records showed the agency rarely provided support in this area and the Council needed to know how Ms B was managing her personal care without this support. If Ms B wanted a ‘deeper clean’ of the flat, then she would have to pay a cleaner privately.
28. Ms B said she made another request for direct payments in January 2020 and had still not received a decision from the Council.
29. In its response to Ms B’s complaint to the Ombudsman in March 2020, the Council said the reason why Ms B’s request for direct payments had not been decided yet was because it was awaiting allocation.

Analysis

30. Ms B says the Council has not properly assessed her needs, her care plan does not meet her needs and she wants the Council to increase the hours she receives.
31. It is not the Ombudsman’s role, of course, to say what Ms B’s care plan should be. That is not something the Ombudsman can decide. Only the Council can decide this and it should do so based on its assessment of Ms B’s needs.
32. I have focussed my investigation on whether the Council has acted in line with the legislation, guidance and its own policies when it assessed Ms B and wrote the care plan.

August 2018 care plan

33. It is difficult to understand, from the documents what the social worker’s assessment of Ms B’s needs was. The care plan lacks the full details on how the needs were to be met. Often the social worker recorded Ms B’s opinion on what her needs were but the social worker did not say whether she agreed with this and what her professional view was.
34. This resulted in a mismatch between the needs that Ms B said she had and the care plan the social worker provided her with.
35. The assessment said Ms B needed support to achieve 7 of the 10 statutory outcomes. However, the care plan only allowed for 5 hours a week to achieve all those outcomes. There was no breakdown or detail on how the support would be provided in the 5 hours that the agency provided.
36. For example, according to the needs assessment, Ms B needed assistance in personal care and in preparing a meal. If this were the case, why was this not available every day and how were those needs met on the 4 days when the carers did not attend? The plan did not say.
37. The implication was that the Council did not agree that Ms B’s needs were as extensive as Ms B said they were. However, the document did not make that clear and did not say what the Council’s view was of Ms B’s needs.
38. I can only speculate what the reasoning was. Did the Council think that Ms B could do some of the tasks independently or that her needs fluctuated or that Mr C was helping her in the tasks?
39. In conclusion, the assessment lacked the necessary detail to decide what Ms B’s needs were and the care plan did not fully say how the needs would be met. This was fault.

September 2019 plan

40. The care plan from September 2019 had more detail than the August 2018 plan which was an improvement.
41. The social worker came to a different conclusion of what Ms B’s needs for support were from the previous social worker. In the assessment in September 2019, the Council came to the conclusion that Ms B was more independent and could do more tasks herself. However Ms B disagreed.
42. Personal care was an example of an outcome where the Council and Ms B disagreed about the level of Ms B’s needs.
43. The Council’s view was partly based on the social worker checking the agency’s records on what care it had provided over the previous year. The social worker noted that the agency mostly carried out cleaning tasks and ‘sorting out’ the flat. Personal care was offered but mostly declined.
44. The Council’s view was therefore that Ms B could shower independently, but was at risk of falls. This risk could be addressed by a Carelink sensor which meant a carer no longer had to be present while Ms B showered.
45. Ms B said she needed support in personal care, but did not receive the support as there was not enough time in the package. She also said her landlord would not agree to Carelink but she then refused the social worker’s offer to speak to the landlord about this which may have resolved the problem.
46. The Council knew that Ms B did not have Carelink and the care plan did not address this problem. The Council still included personal care in the package, but it is not clear what the carers were meant to provide. Were they meant to assist Ms B in showering or simply be present while she showered? It still left the question how Ms B coped in the days when the carers did not attend. This continued lack of clarity was fault.
47. One important omission from the assessment was how much support Mr C was providing. The social worker worked on the assumption that Mr C cleaned his flat and did some food shopping and cooking. However, as Mr C did not want to participate in the assessment and Ms B said he should not provide any support, it made it difficult for the social worker to properly complete the assessment. The assessment would have been better if Mr C had cooperated, However, I cannot criticise the Council for not including Mr C in the assessment of Ms B’s needs or for not carrying a carer’s assessment if Mr C was not willing to participate.

Direct payments

48. There is no record that Ms B asked for direct payments in 2019, but she asked for direct payments in January 2020.
49. The Council carried out a review assessment of Ms B’s needs in March 2020. It said that it had concerns about Ms B’s ability to hire a personal assistant during the Covid-19 pandemic, but it has now agreed that she can receive direct payments and has advised her advocate of this.

Injustice and remedy

50. The Ombudsman’s offices were closed from March 2020 to June 2020 which meant I could not send a draft decision to the Council.
51. I sent a draft decision in July 2020. I said the injustice Ms B had suffered was the uncertainty of not knowing whether the plan would have been different if the assessment had been carried out differently.
52. I recommended that the Council should offer Ms B a reassessment and a review care plan and a sum of £200 for the uncertainty of not knowing whether the outcome would have been different.
53. However, I did not know that the Council carried out a further assessment of Ms B’s needs in March 2020. Ms B was supported by an advocate in this assessment. The social worker increased the support to 11.25 hours a week following the assessment. This included 4 hours to carry out domestic tasks and laundry, 3.50 hours for personal care (30 minutes a day), 1.75 hours for meal preparation (15 minutes per day) and 2 hours for shopping.
54. It is my understanding that Ms B did not accept the offer of extra support as she felt it was not enough.
55. The Council re-assessed Ms B again in June 2020. The social worker now said there was not sufficient evidence to show that Ms B needed support in managing her personal care. Ms B had no support in personal care since the start of March 2020 and this had not compromised her personal hygiene. The social worker said that Ms B could do basic meal preparation. She also thought her nephew had been supporting her in this area although he would still not cooperate with an assessment. In light of this, the Council reduced the package to 6 hours.
56. I understand that Ms B has made further complaints about these assessments and has instructed a solicitor.
57. These assessments are not the subject of the current investigation. However, in terms of remedy, I am of the view that the Council has delivered the remedy and nothing could be achieved by asking the Council to carry out a further assessment. A financial payment is not warranted now that the uncertainty has been removed.

Final decision

58. There was fault in the Council’s actions and the Council has remedied the fault by carrying out further assessments of Ms B’s needs.

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Investigator's decision on behalf of the Ombudsman