• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr D complained about the Council’s handling of his Care Act needs assessment and how it communicated with him. He said, as a result, he experienced distress and a loss of support. We found the Council at fault for causing delays to properly assess Mr D’s needs over a 10-month period. We did not find fault in how it had regard to his reasonable adjustment request for how it communicated with him. The Council will apologise and make payment to acknowledge the distress and loss of support Mr D experienced.

The complaint

1. The complainant, whom I shall refer to as Mr D, complained the Council did not help him get the adult social care support he needed between January 2022 to July 2023. He also said it failed to provide enough reasonable adjustments in the way it communicated with him.
2. Mr D said he experienced distress as a result of the Council’s delays and had a loss of support.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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How I considered this complaint

5. As part of my investigation, I have:
   • considered Mr D’s complaint and the Council’s responses;
   • discussed the complaint with Mr D and considered the information he and the Council provided; and
   • had regard to the law and guidance relevant to the complaint.
6. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Care Act needs assessments

7. 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.
8. 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.
9. The Care and Support Statutory Guidance says the process should normally be completed within four-six weeks, and it should involve a face-to-face assessment if there the individual has mental health problems, although it may take longer in complex cases. The outcome of the assessment must be shared with the individual in writing.
10. Where an individual has substantial difficulty in being involved and there is no one to help them, councils must arrange for an independent advocate to assist in the involvement of the assessment process.

Equality Act 2010

11. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
12. The reasonable adjustment duty is set out in the Equality Act 2010 aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
13. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
14. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
15. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

What happened

16. Mr D says he has care and support needs as he has mobility issues and struggles to cook, clean and read correspondence without this support.
17. In early 2022, the NHS referred Mr D to the Council for an adult social care needs assessment. The Council’s duty team spoke with him, but found he did not have eligible needs for support. The Council signposted Mr D to some local support services.
18. At the time, Mr D also shared his request for reasonable adjustment with the Council regarding how it communicated with him. He preferred phone calls and contact with one or a limited number of officers.
19. In October 2022, Mr D again told the Council he was struggling to get out of his home, with some personal care, and to manage benefits and correspondence. He asked the Council for help as he had no food in his flat.
20. In response to Mr D’s request the Council:
    • spoke with him on the same day. It made a referral for money management support and arranged for a food parcel to be delivered to him;
    • considered views of a physio and an occupational therapist from 2021, which had found he did not have mobility issues;
    • contacted Mr D’s GP surgery for an update on his mobility the following day. The surgery confirmed he had had several assessments and scans which all found he could mobilise; and
    • decided to end the care needs assessment as it was not satisfied Mr D had eligible care needs as he was able to mobilise.
21. Soon after, Mr D’s GP contacted the Council and requested further assessment of his care and support needs. This was following the GP’s discussion with a carer who Mr D had employed to support him with food, shopping, managing bills. The Council told the GP it had spoken with Mr D two weeks before and had not identified any care and support needs.
22. In April 2023 a referral was made for Mr D which asked the Council for help with care and support again. Mr D explained he needed support due to his mobility and mental health issues. The Council initially only provided Mr D some advice but agreed to carry out a needs assessment when he was dissatisfied.
23. Mr D subsequently also asked the Council for help with completing a referral for a specific NHS medical assessment and for a social worker to be allocated to help him with some daily living and general support.
24. Mr D asked the Ombudsman to consider his case in May 2023. However, as the Council had not considered his complaint, we asked the Council to provide him with a response. His complaint was the Council had failed to provide him with support to get any adult social care support, to allocate a support worker, and to offer a Care Act needs assessment and financial assessment.
25. In response to Mr D’s complaint, the Council said it had spoken with him shortly after receiving the referral. The outcome of this was to request his GP to refer him to a social prescribing service. It also offered information about cleaning services, meal delivery services and money support. It explained he had also wanted support with completing an NHS referral form for a medical assessment which had since been completed by his GP. It said a Care Act needs assessment would be needed to determine his eligibility for support, and it had put him on a waiting list for a social worker to complete the assessment.
26. Mr D was not satisfied with the Council’s response. He said he had waited more than a year to get the support he felt he needed and now he was on a waiting list for a social worker to be allocated. He also said it had failed to put in place reasonable adjustments in how it communicated with him. He wanted the Council to apologise and make payment to remedy the impact the delays it had caused.
27. The Council arranged a call with Mr D as part of its final complaint response. It found:
    • the delay in allocating a social worker to complete his needs assessment from April 2023 was not a considerable delay;
    • it had spoken with Mr D following each referral or contact for adult social care support in 2022 and offered advice. However, it acknowledged it did not have any records it had offered to meet with him prior to completing an assessment, and apologised if this had been miscommunicated; and
    • Mr D had asked to be contacted by phone and set out his reasonable adjustments for how he should be communicated with. The Council had shared his communication request with his allocated social worker for his needs assessment.
28. The Council referred Mr D for advocacy support and completed his needs assessment in July 2023. It visited Mr D in the process and found he had eligible needs for three hours of support each week.
29. In October 2023 Mr D asked to Ombudsman to consider his complaint. He also shared issues which had occurred since the Council’s needs assessment in July 2023.

Analysis and findings

30. Mr D complained about the Council’s handling of his referrals and request for adult social care support since early 2022. Mr D initially contacted the Ombudsman in May 2023; however, this was before the Council’s complaint process had been completed. He again contacted us in October 2023 when it had completed the complaints process. This was more than 12 months after some of the events complained about.
31. I have decided to consider Mr D’s complaint from October 2022 until July 2023 when the Council completed his Care Act needs assessment. This is because I have seen no good reason he could not have raised his complaint to the Council about its handling of his early 2022 request sooner.
32. Mr D’s ongoing concerns about the Council’s handling of his adult social care support after July 2023 was not part of his complaint to the Council. He will therefore need to raise a complaint with the Council and return to the Ombudsman with a new complaint, if he wishes to do so.

Mr D’s request for a Care Act assessment in October 2022

33. Mr D told the Council he had care and support needs in October 2022. This included his difficulties with mobility issues, and struggles to cook, clean, and read correspondence without this support.
34. I acknowledge the Council did speak with Mr D by phone at the time, considered its medical records about his mobility from 2021 and sought some information from his GP around his mobility. It also provided some information about where he could obtain some support in his local community.
35. However, I have found the Council at fault for its failure to complete Mr D’s needs assessment in line with the Care Act in October 2022. This is because:
    • it had a duty to carry out Mr D’s assessment when it appeared to it, he may have needs for care and support. This duty applied regardless of the Council’s view of the level of his needs or resources. The Council accepted it had no evidence it had offered to visit Mr D to complete a needs assessment at the time. While the Council did do some assessment of Mr D, its call and consideration of past medical evidence regarding his mobility was not a full and proper consideration of his care and support needs at the time.
    • the assessment must include the impact on Mr D’s needs for care and support on his wellbeing, the outcomes he wished to achieve on day-to-day life and whether care and support could contribute to those outcomes. This should have been a written record of its determination about his eligibility, and the decision should have been shared with Mr D which should set out his rights of complaint or appeal.
    • it must arrange an independent advocate to assist if the person had substantial difficulty being involved or there is no one available to support them and represent their wishes. There is no evidence the Council considered this at the time, which based on Mr D’s reasonable adjustment requests and lack of understanding of the process appears to have been appropriate.
    • it should have allocated a social worker to complete his needs assessment in October 2022. In addition, when the Council received a further referral for a needs assessment for Mr D in April 2023, it did not allocate a social worker and start the assessment process until around two months later.
36. I cannot say what the outcome of the Council’s needs assessment in October 2022 would have been if it had been properly considered and completed. However, I have seen no evidence Mr D’s needs had significantly changed before the Council completed his July 2023 needs assessment. I have therefore had regard to the outcome of this assessment.
37. I am therefore satisfied the Council’s fault caused some distress and uncertainty, and some loss of care support from November 2022, when the needs assessment should have been completed, until July 2023 when it completed his needs assessment.

Communication and reasonable adjustment

38. Mr D set out his request for reasonable adjustments to the Council regarding how it should communicate with him.
39. I have not found fault in how the Council considered Mr D’s request. This is because the evidence show the Council considered his request and primarily communicated with him by phone as requested. It also shared his communication request with his social worker when one was allocated.
40. While I understand Mr D remain unhappy about how the Council’s officers communicated with him, I have not seen any evidence this was inappropriate and it had failed to have regard to his request. However, if Mr D believes its actions was a breach of the Equality Act, he can exercise his right to bring his concern to a court for its determination.

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Agreed action

41. To remedy the injustice the Council caused to Mr D, the Council should, within one month of the final decision:
    • 1. apologise in writing to Mr D, and pay him £300 to acknowledge the distress and uncertainty arising due to the delay in carrying out his Care Act needs assessment from October 2022 to July 2023;
      2. pay Mr D a further £500 in recognition of the impact of missed support from October 2022 to July 2023.

In total the Council should pay Mr D £800.

42. Within three months of the final decision the Council should also:
    • remind staff in the Council’s Adult Social Care team of its section 9 duty under the Care Act 2014. This is to ensure needs assessments for individuals are properly assessed and the outcomes are shared with individuals without delay.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. There was fault which caused Mr D an injustice, it is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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