Summary: Mrs B complained that the Council reduced her care package without properly assessing her needs. We have found fault in the way the Council re-assessed Mr B’s needs for care and support. The Council has agreed to apologise, pay a financial remedy, re-assess Mrs B’s needs and provide her with an updated support plan.

The complaint

1. Mrs B complains about the Council’s decision to reduce her care package. She says the decision was made without properly considering her needs or her husband’s ability and willingness to provide support.

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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 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)
3. 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

4. I have discussed the complaint with Mrs B and with her representative. I have considered the evidence sent by Mrs B and the Council, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

5. The Care Act 2014 and the Care and Support Statutory Guidance 2014 set out the Council’s duties towards adults who require care and support. There is also separate guidance for care for deafblind adults and children.

Assessment and care plan

6. The Care Act 2014 says councils have 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 costs to meet the needs.
7. The threshold for eligibility is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. The council 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.
8. The 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 or
• Making use of necessary facilities or services in the local community
• Carrying out caring responsibilities for a child

Needs met by a carer

9. Local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer. 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 all the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out the care they previously provided.
10. The local authority should record the carer’s willingness to provide care and the extent of this in the care plan, so that the authority is able to respond to any changes in circumstances.

Review of the care plan

11. Councils should carry out a planned review of the care plan at least every 12 months:
• If the review identifies that a person’s needs have changed this may lead to a reassessment of the needs.
• A review and a revision of the care plan are linked. It should not be possible to decide to revise the plan without a thorough review. The CASS Guidance says: ‘Where the local authority is satisfied that a revision is necessary, it must work through the assessment and care planning process… to the extent that it thinks appropriate.’
• The review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget.

Agreeing the plan

12. The local authority must take all reasonable steps to agree with the person how the person’s needs will be met in the care plan, before the authority signs off the plan.
13. Wherever possible, local authority sign-off should occur when the person and the local authority have agreed on the plan, including the final personal budget amount, and how the needs in question will be met.
14. If the plan cannot be agreed with the person, or any other person involved, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off.

Assessment for people who are deafblind

15. If a person is deafblind, this must trigger a specialist assessment. This specialist assessment must be carried out by an assessor or team that has training of at least QCF or OCN level 3, or above where the person has higher or more complex needs.

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What happened

16. Mrs B is an adult who is deafblind and has other disabilities caused by a degenerative condition. She lives with her husband, Mr B who provides most of the care and support for Mrs B. Mr B works full-time.

Assessment and care plan– January 2021

17. The Council’s assessment of Mrs B in January 2021 said Mrs B needed support as follows:
• Personal care. Mrs B could not manage personal care on her own and needed support to shower.
• Eating and drinking. Mrs B was unable to shop or prepare hot meals and drinks without support.
• Decision making. Mrs B needed support to read letters or pay bills.
• Using the home safely. Mrs B was unable to go down steps or stairs without support. She needed as much support as was offered as her sight was very poor and her condition was getting worse.
• Maintaining a home. Mrs B was unable to keep her home clean and tidy. Mrs B could not carry out any household tasks without support.
• Accessing the community. Mrs B could not go out of the house without support. She had very little vision and hearing and her balance was not good at times.
• Work. Mrs B needed support to work as a volunteer.
18. The Council said Mrs B was entitled to 12 hours support for personal care, meal preparation, going into the community and shopping.

Care plan review – 22 March 2023

19. A community care worker carried out a visit to Mrs B to review her care plan. The worker noted that Mrs B’s needs and outcomes were unchanged. Mrs B said her personal assistant supported her in using public transport, accessing the community, cleaning, laundry, shopping and socialising. Mrs B said she was satisfied with the care plan. The worker said they would feed this back to the manager but could not make the decision.
20. The worker discussed the plan with a manager on 28 March 2023 and it was decided to reduce the plan. A note of an internal Council discussion said:
• ‘We discussed that [Mrs B] has no eligible social care needs but we are looking at this in terms of she is still needing a personal assistant for support in building her confidence socially.’
21. The Council reduced Mrs B’s care plan to 4 hours. The social worker emailed Mrs B and said:
• ‘The reason for this is your personal assistant is providing support with cooking, shopping, cleaning and social support. None of which are eligible for a personal budget.’

Complaint – 16 April 2023

22. Mrs B complained to the Council and said the Council reduced her care plan on the basis of a 20-minute visit. The Council had not consulted her before making the decision and had not given any valid reason for its decision.
23. Following this complaint, a manager and a social worker visited Mrs B on 12 May 2023 to carry out a further review. During the visit they increased the offer of support to 7 hours.

Council’s response – 19 May 2023

24. The Council responded to Mrs B’s complaint and said:
• The community care worker ‘assessed that support was in place via your husband concerning domestic support within the home, so that support from the personal assistant was no longer eligible. I apologise if this was not clearly communicated to you.’
• It apologised for not giving Mrs B an opportunity to discuss the changes to the care plan before it made the changes.

Complaint – 26 May 2023

25. Mrs B was not satisfied with the response and said:
• She had previously received 12 hours support for 5 years, but during the meeting with the manager on 12 May 2023 she had to ‘prove’ her disability. It had now been 9 weeks since the Council’s decision to reduce her package and there was still no resolution in sight.

Council’s response – June 2023

26. The Council responded in June 2023 and said:
• The community care worker wrote that ‘certain elements of the support that had previously been funded through your direct payment were no longer eligible for a personal budget. That was not correct.’
• The reason was that some of Mrs B’s needs ‘could or were being met through informal support which was naturally available’ to her.
• It was unlikely that a further review would lead to a different outcome so Mrs B should take her complaint to the Ombudsman.

Mrs B’s complaint – July 2023

27. Mrs B pursued her complaint with the support of a legal representative. Mrs B said:
• She suspected that her Care Act assessment was not carried out by a suitably qualified expert as set out in the CASS Guidance.
• There were flaws in the assessment. The assessment had not properly considered the support provided by Mr B. The Council had said that some tasks were carried out ‘as part of family life’ and therefore had to be met by Mr B.
• Mr B told the Council that he was neither willing nor able to provide the care tasks that the Council expected him to provide, but the Council had completely ignored this in its assessment.
• The Council told Mrs B that ‘Adult Social Care do not fund housework.’ That sounded like a blanket policy which would be unlawful and discriminatory.

The Council’s response – 2 August 2023

28. The Council said:
• It had not carried out a Care Act re-assessment of Mrs B’s needs, only a review of her care plan. Her needs had not changed so a reassessment was not indicated.
• It admitted that the person who reviewed Mrs B’s care plan did not have the necessary qualification to carry out the review. To address this, it was organising training to the social care teams as an urgent priority.
• When the social worker spoke to Mrs B, Mrs B said she did not regard her husband as her carer and her assessment and support plan reflected that there was no informal or unpaid carer. That position had now changed as Mrs B had asked how Mr B could access a carer’s assessment.
• It explained the concept of ‘natural support through family life’ and said it could not find evidence that Mr B provided care ‘over and above what we could reasonably expect would naturally occur in a family household.’ It added: ‘We have not assumed that her husband is completing additional care tasks.’
• A visual impairment rehabilitation officer had now worked with Mrs B to determine if there was anything that could support Mrs B to remain independent as possible. He recommended that Mrs B would benefit from 3 hours per week support with meal preparation. So the Council increased Mrs B’s care plan to 10 hours support per week.
• The Council was still of the view that this meal preparation could be met through ‘natural support available as family life’. However, as the review had not been completed by an officer with the relevant qualification, it agreed to increase the support package by 3 hours.
29. Mrs B responded and said she was not satisfied with the response and would go to the Ombudsman. She gave the Council a final chance to respond. The Council responded in September 2023 and agreed to reinstate Mrs B’s 12 hours support until it could arrange a review of her needs by a suitably qualified person. Mrs B started to receive support from her personal assistant again in September 2023.
30. There is a case note dated 5 April 2024 which says a social worker contacted Mrs B to offer her an assessment. Mrs B asked the social worker whether he was deafblind trained and he said yes. Mrs B said she had been treated unfairly last time and did not want to go through that again so she would wait until the outcome of the Ombudsman’s assessment before continuing with the Council’s reassessment of her needs.
31. I spoke to Mrs B and she thought the social worker had not received the relevant training, but that was not the case as far as I can see.
32. Mrs B did not receive support from a personal assistant for 5 months, from April to August 2023. I asked Mrs B why she did not take up the reduced care package that the Council offered and which was gradually increased as the complaint progressed. Mrs B said the same personal assistant had been in her employment for 5 years. The personal assistant went off sick because of the stress of the reduced care package and could not afford to work for Mrs B at a reduced income. Mrs B said she was reluctant to hire a different personal assistant while the complaint process was ongoing.

Analysis

33. It is not for the Ombudsman to carry out an assessment or to say what the care plan should be. I can only consider what the Council should have done, according to the law, guidance and policies and compare it to what it actually did.
34. There were several faults in the way the Council decided to reduce Mrs B’s care plan.
35. The Care Act 2014 and the CASS Guidance say:
• The Council should carry out an assessment of a person’s needs to decide whether they have an eligible need and how this need will be met.
• The Council should not use the review process to reduce a care plan arbitrarily. If it appears, from the review, that a revision of the care plan is needed, then a reassessment may be required.
• The Council should agree the care plan with the person before signing it off.
• Assessors of deaf-blind people should be properly qualified.
• If some of a person’s eligible needs are met by a carer (family) then these needs should still be included in the assessment and care plan and the documents should set out how the carer meets the needs.
• The Council should check with the carer whether they are willing or able to meet the needs. It should record this in the document.

Failure to assess or explain reason for reduction

36. It appears the decision to reduce the care plan was made during a meeting between the officer and the manager on 28 March 2023. If the Council realised at that stage that it was about to make a drastic reduction to the care plan, it should have re-assessed Mrs B’s needs and provided her with a care plan which set out how her needs would now be met with the reduced support package and it should have explained how it calculated the reduction. The Council failed to do this and this was fault.
37. There was poor communication by the Council in explaining its reasons for the reduction. The Council initially said it reduced the package because Mrs B had no eligible needs and then changed it to say that her husband was already providing the support as part of normal family life. The Council’s failure to properly explain its reasoning was fault.

Failure to agree plan before finalising plan

38. There was further fault as the Council did not involve Mr or Mrs B in the decision to change the care plan, before it made the changes, nor did it try to come to an agreement about the care plan before it finalised the plan. The social worker gave no indication at the initial review in March 2023 that the care plan would be changed.

Assessor’s lack of qualification

39. In addition, the Council officer who carried out the review was not properly qualified to assess Mrs B as the officer did not have the suitable training to assess deaf-blind people and that was a further fault.

Failure to consider needs met by carer

40. There was further fault as the Council failed to properly consider the support provided by Mr B or to set it out in the review document and in the care plan.
41. The Council’s assessments noted that Mrs B had substantial needs for care and support. She was unable to shop, prepare hot drinks or meals, maintain the house, go down the stairs, go outside into the community and so on without support. These needs had not changed.
42. The Council reduced Mrs B’s care plan as it had decided unilaterally that Mr B should provide all of the support (apart from 4 hours to go into the community) to meet these needs. However, it did not inform Mr B of this change in plan or ask his view before making that decision. The Council failed to consider whether Mr B was ‘willing and able’ to provide the support and this was further fault.
43. Even after Mr and Mrs B clearly informed the Council that Mr B was not willing or able to provide that level of support, the Council still did not carry out a reassessment or consider his views now did it amend the documents to set out the support Mr B provided. That was further fault.
44. I note that the Council said in its complaint response of August 2023 that Mrs B did not consider Mr B as her carer and this was the reason why the Council did not include him in the assessment or care plan. The Council had a duty to record all the care and support provided by Mr B in the assessment and the care plan, as well as Mr B’s willingness to provide care. The Council should have explained this to Mrs B rather than ignoring Mr B in the assessment and care plan.
45. The problem was that there was never any clarity in the assessment or care plan about what support Mr B provided and what support the care worker provided and how the Council calculated the hours of support.

Offer of reassessment

46. I find no fault in the Council’s offer of a reassessment in April 2024. The offer was made by a person with the relevant training so it was a fair offer. So I do not find fault in the fact that Mrs B has not been reassessed yet.

Injustice and remedy

47. Mrs B has explained the profound effect that the Council’s failures have had on her and Mr B. She felt that she had to continuously fight for her rights and felt that she was ‘begging and pleading’ with the Council. The care package was vital for her independence and she had been receiving the package for 5 years.
48. Mrs B said she did not have the support of her personal assistant for 5 months while she pursued her complaint and Mr B had to provide all the support during that time. Mr B has neurodevelopmental and mental health conditions which affected the level of support he could provide. In addition, Mr B was providing care for his father who also had needs for care and support. Mrs B says Mr B’s and her own mental health were affected by the lack of support during those 5 months.
49. The aim of the Ombudsman’s remedy is to put the person in the position they would have been if the fault had not occurred. In cases such as this one, where the person has not suffered any direct financial loss as a result of the fault, the Ombudsman can offer a symbolic payment for distress suffered by the fault, but this will generally speaking be a modest sum.
50. The Ombudsman does not provide compensation, punishment or fines. We do not generally calculate a financial remedy based on what the cost of the service would have been to the Council.
51. I have considered the effect the lack of provision had on Mr and Mrs B. I have also considered the fact that the Council offered 4 hours support, which was then gradually increased over the following months. I understand the reasons why Mrs B did not take up that offer but I also have to consider the fact that the Council made the offer which at least partly could have alleviated the problem.
52. I recommend the Council pay Mrs B £350 reflect the distress that she has suffered because of the fault and an additional £150 to reflect the additional time and trouble she had in pursuing the complaint. I also recommend the Council pays Mr B £350 to reflect the stress he suffered from having to provide the support that had been withdrawn without good reason.
53. The Council should also provide an assessment of Mrs B’s needs by a suitable qualified professional and provide Mrs B with a care plan. The care plan should set out what care and support Mr B is able and willing to provide and what support the care worker provides.
54. The Council should also remind relevant officers of the requirement to consider and record the care provided by an informal carer in the Care Act assessment and the care plan.

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Agreed action

55. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Mr and Mrs B for the fault I have identified.
• Pay Mrs B £500.
• Pay Mr B £350.
• Carry out an assessment of Mrs B’s needs for care and support and provide her with a care plan as set out in paragraph 53.
• Remind relevant officers of the requirement to consider and record the care provided by an informal carer in the Care Act assessment and the care plan.

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Final decision

56. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman