Summary: We upheld complaints made by Mrs D concerning the Council’s assessment of her mother’s care needs in May 2022 and that it did not fully refund money spent on her care as a result. Also, that it was at fault for how it assessed her late father’s care needs in June and August 2022. These faults caused a loss of service and distress. The Council accepts these findings and at the end of this statement, we set out the actions it has agreed to take to remedy that injustice and improve services to avoid a repeat.

The complaint

1. I have called the complainant ‘Mrs D’. Her complaint concerns decisions taken by the Council in 2022, around the care needs of her parents Mr and Mrs C. In particular Mrs D complains the Council:

• failed to promptly assess the care needs of Mrs C, after first contact on 22 May 2022;
• delayed in refunding the cost of care the family arranged for Mrs C and has not fully refunded those costs;
• wrongly assessed that Mr C did not have any eligible care needs, in June and August 2022.

2. Mrs D says she experienced unnecessary distress in arranging to meet both her parents’ care needs. Further that she has not received full repayment for the cost of meeting Mrs C’s needs or any payment for the cost of meeting Mr C’s care needs. Also, that she experienced unnecessary frustration, time and trouble, during a stressful time in her life, when making enquiries and complaints about these matters.

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The Ombudsman’s role and powers

3. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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

6. Before issuing this decision statement I considered the following:

• Mrs D’s written complaint to the Ombudsman and any supporting information she provided, including that gathered in a telephone conversation;
• correspondence between Mrs D and the Council, about the matters covered by this complaint, which pre-dated this investigation;
• information provided by the Council in reply to written enquiries;
• relevant law and Government guidance on care assessments and meeting care and support needs;
• relevant guidance published by this office including our guidance on remedying complaints.

7. I also gave Mrs D and the Council a chance to comment on a draft version of this decision statement. I took account of any comments they made, or further evidence provided, before issuing this final version.

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What I found

Key law and guidance

8. 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’ (i.e., those needs the Council must ensure are met).
9. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
10. The law and Government guidance does not specify how the Council must carry out social care assessments. It encourages flexibility. For example, councils can use ‘suitably trained’ assessors to undertake assessments as opposed to social workers. Councils do not have to undertake assessments using a particular form or in person.
11. There are three tests someone must satisfy for a council to find they have ‘eligible needs’ (i.e., those care needs a council must ensure are met). First, they must have needs that arise “from or be related to” a physical or mental impairment or illness.
12. Second, because of those needs, the adult must be unable to achieve two or more of ten specified outcomes, including that they can:

• manage and maintain their nutrition;
• maintain their personal hygiene;
• manage their toilet needs;
• dress themselves appropriately;
• use their home safely;
• maintain a safe and habitable home environment.

13. Third, if the adult cannot achieve these outcomes, it is likely a significant impact on their well-being will result.
14. A council has a duty to arrange care and support for those with eligible needs. A council can choose to charge for non-residential care following a person’s needs assessment. (Care Act 2014, section 14 and 17)

The complaints about assessment of Mrs C’s needs and repayment of sums paid for care

The key facts

15. The events covered by this complaint began on or around 22 May 2022, following Mrs C’s discharge from hospital. Mrs D told me that Mrs C and her family thought it in her best interests that she return home once medically well enough. On Mrs C’s discharge therefore, the family arranged for a care agency to provide four visits a day to Mrs C. The care agency was known to Mrs C as it had provided her with some care before she entered hospital.
16. On or about 22 May, one of Mrs D’s siblings rang the Council to discuss Mrs C’s care needs. She spoke to a children’s social worker. He recorded that Mrs C could not care for herself and a pre-existing home care package would be inadequate to meet her needs going forward. He said the family wanted an urgent call to discuss Mrs C’s needs.
17. In the early hours of 23 May, the social worker forwarded details of this contact to the Council’s ‘independent advice hub’ (IAH), which is part of its adult care services. A worker from that service called Mrs D’s sibling later that day. They too recorded the family decision to increase Mrs C’s visits from the care agency. The note recorded discussion about the possibility of Mrs C entering a residential home for assessment but says this was declined.
18. The Council says that on 23 May, it had a pre-existing referral to assess Mrs C for extra care housing. It had given that referral (made on 5 May) a ‘priority 2’ status. However, following the contacts on or around 22 May, it increased the priority given to Mrs C’s case to ‘priority 1’ (for an explanation of this priority see below).
19. The next note on the Council’s records dates from 30 May. By now the Council had assigned Mrs C’s case to a social worker, who then assessed Mrs C’s care needs on 6 June. The Council decided Mrs C had eligible care needs, which were being met by the care agency.
20. A financial assessment followed towards the end of July 2023. This found Mrs C did not have to pay towards her care. Before this took place, Mrs D contacted the Council four times to remind it to undertake the financial assessment.
21. The family continued to pay for the care agency to support Mrs C up to 13 August 2023. On or around this day Mrs C suffered a fall and re-entered hospital.
22. In early October 2022 Mrs D contacted the Council, explaining that between 6 June and 13 August 2022 the family had paid invoices for Mrs C’s care totalling £3980. She said following the assessment in June 2022, the family had understood the Council would refund any sums paid.
23. In late October 2022 Mrs D made a complaint to the Council. It covered several areas including matters outside the scope of this investigation. But included complaints the Council did not respond properly to the first contact with it in May and had not refunded care fees incurred for Mrs C’s care. Mrs D also explained that she had repeatedly chased the Council to carry out Mrs C’s financial assessment.
24. Mrs D received a reply to her complaint in mid-December 2022. In its reply, the Council said that in late-September 2022 it had authorised a payment to meet Mrs C’s care needs between June and August. However, there was some misunderstanding about this. So, payment went to the care provider and not Mrs C or Mrs D. It was also for only around £3,100, so around £870 less than the invoices paid on or on behalf of Mrs C. The Council explained this was because it contracted with the care provider to pay for care at a lower hourly rate than paid for privately. The Council said due to the delay in requesting payment it would refund the difference of around £870. It would pay this to the care provider. Mrs D could then ask for a refund from the provider if Mrs C’s account was in credit.
25. In mid-March 2023 Mrs D contacted the Council to advise that it had not paid £870 as promised. She followed this with further contacts to the Council in late March and mid-April 2023. After which the Council made the outstanding payment. In later correspondence with Mrs D, the Council said its complaint team had repeatedly asked the adult care service to pay the promised £870 during this time.
26. In late April 2023, Mrs D queried why the Council had only refunded the care charges to 6 June 2022. She suggested the Council should refund the charges to 22 May when the family first alerted it to Mrs C’s needs. The Council did not reply to that query.

My investigation

27. As well as establishing the facts above, I asked the Council about some of the procedures it follows, relevant to this part of the complaint.
28. First, I asked it about the priority it gave to assessing Mrs C’s care needs. The Council told me it has three tiers of priority when alerted to the need to carry out an assessment. It told me that it gives ‘priority 1’ to the most urgent referrals. It gives as examples when someone needs an ‘urgent respite / assessment bed’ or a ‘home care package’. It did not provide any detail about how it assigns ‘priority 2’ or ‘priority 3’ to cases. But said it aimed to complete ‘priority 2’ assessments within two to three weeks.
29. Second, I asked it about when it tried to complete financial assessments. The Council said that its finance team receives referrals from social work staff when they have identified a specific service required. It aims to then carry out the financial assessment “contemporaneously”.
30. Third, I asked it about communications between its complaint service and adult care services given the delay between December 2022 and April 2023 in it paying money agreed to cover Mrs C’s care. The Council said that when actions agreed following a complaint investigation remain outstanding, its complaint officers contact service Directors. This is electronically at first, but it would follow up with a meeting when needed. The Council said that recently it had introduced “a more structured focus on service improvement, performance and lessons learnt”. This included a monthly meeting between managers from the complaint service and the adult care service.
31. Finally, I also asked the Council’s position on refunding Mrs C for care charges incurred between 22 May and 5 June 2023. The Council told me that it based its decision to refund Mrs C’s care charges from the date it assessed she became eligible for help in meeting her care needs (6 June).

My findings

32. I begin this analysis by noting the difficult and unfamiliar position Mrs C and her siblings found themselves in from late May 2022 onward. They experienced the stress of both their parents becoming hospitalised around the same time. They suddenly had to familiarise themselves with issues around hospital discharge and care planning. This was to ensure their parents could return to the family home while receiving the care they needed.
33. I am unsure why the first contact the family had about Mrs C’s care needs went to a children’s social worker. But I find no fault in the actions the social worker took in referring this enquiry to the adult social care service.
34. I also find no fault in the immediate response the family received. I note that earlier in the history of this complaint, Mrs C suggested the Council call handler spoke inappropriately to the family. I cannot take a view on this, as the notes do not record the conversation word for word. But the Council says it did prioritise Mrs C's case for a social work assessment. I do not consider it could do more at that point.
35. However, the Council could not carry out the agreed assessment as urgently as a ‘priority 1’ category implies. It took around two weeks, which is more in keeping with a ‘priority 2’ referral. This delay may simply reflect the demands on the service. But even so, I must regard this delay as a service failing, and therefore make a finding of fault.
36. A second fault followed in the delayed financial assessment. We consider the statutory guidance clear, that councils should aim to complete financial assessments alongside needs assessments. In urgent cases meeting needs must take priority and so we would not necessarily find fault in a short delay between the two. But in this case, it was not a short delay. It took nearly two months for the Council to carry out its financial assessment. This was a fault.
37. Because of these faults the Council left Mrs D uncertain about what needs it would meet and whether Mrs C needed to pay towards those needs. Mrs D also experienced frustration in repeatedly reminding the service of the need to carry out the financial assessment. I consider the Council’s actions had already caused injustice at this point, because this uncertainty is a form of distress.
38. In September 2022, the Council appears to have tried to resolve this uncertainty. It made a payment to the care provider. While I understand it would usually contract directly with a care provider to meet needs and so pay it directly, I consider this too was a fault. It would have been more suitable to pay Mrs C directly, given there were no outstanding bills. While I consider any injustice arising from this decision limited, it was one more source of avoidable frustration to Mrs D. Similarly, the Council’s failure to pay the care provider the correct amount.
39. In December 2022 the Council made its second attempt to resolve matters, contained within its complaint response. It promised to resolve the outstanding payment issue. However, there then followed a five-month delay in the Council delivering on its promise. This too was a fault. It caused Mrs D further injustice as she had unnecessary time and trouble repeatedly chasing this matter.
40. After the Council refunded all sums paid by the family for Mrs C’s care between 6 June and 13 August, Mrs D asked about it backdating that payment further. I recognise Mrs D could have asked this sooner. But I consider her correct to suggest the Council should have backdated any refund of care charges to 22 May (understanding this was the day Mrs C’s home care package increased following her discharge from hospital). This is because it was on that day the family first let the Council know of Mrs C’s change in circumstance resulting in her having eligible care needs.
41. There is no definitive Government guidance that makes clear from when the Council should start paying for care, when individuals funding their own care make it aware of their potential eligibility for support. But we consider payment should start once a council becomes aware of the change of circumstances. Mrs C should not suffer disadvantage because the Council could not assess her care needs for two weeks. The Council’s failure so far to repay the care charges back to 22 May is therefore a further injustice.
42. The Council has accepted these findings. In the section headed ‘agreed action’ below I set out the actions it will now take to remedy the injustice identified above.

The complaint about assessments of Mr C’s needs

The key facts

43. The events covered by this part of the complaint begin on 31 May 2022. Mr C was then an in-patient in hospital, following a stroke. The Council received a notification from the hospital which said Mr C needed help “with washing and dressing lower half of body [and] needs prompt with medication”.
44. Around a week later, on 6 June, the IAH service received contact direct from Mrs D. She told them Mr C was now back at the family home. He had been medically fit for discharge and the family wanted him to return. As for Mrs C, the family had arranged for Mr C to receive care from a care agency (the same agency supporting Mrs C).
45. The notes of that contact said Mr C struggled with dressing. In particular, needing help with prompting and choosing appropriate clothes. It said he could not make meals for himself. It said he liked to manage his own medication but may need prompting to do so. It also said he may need help with laundry.
46. On 14 June an assessor visited Mr C at his home, with an Occupational Therapist. They spoke to Mr C in the presence of his wife and a sibling of Mrs D. The assessor recorded that Mr C had a speech impairment but could “voice opinions and make his needs known”. The assessment considered Mr C’s mobility and the suitability of the home. In discussing his personal care, the assessment recorded Mr C did not raise any issues with incontinence and that he could use the shower. It said he did not always remember to take medication. But that a Dossett box was on order (a container with separate compartments for days of the week and times of the day to help people with taking their medicines). The assessment concluded that Mr C “is managing independently and appropriately with all care needs”.
47. I note another version of the same record appears dated 17 June. This has the same content as that dated 14 June, but also includes some further observations. It says Mr C can heat meals in a microwave independently. And that his cleaning and shopping was done with ‘family support’.
48. The assessment decided Mr C was not eligible for support with his social care needs.
49. In mid-August 2022 Mrs D contacted the Council again about Mr C’s needs. At this time Mrs C was in hospital following a fall and Mr C was staying temporarily with Mrs D and due imminently to return home (he returned on 22 August). Mrs D spoke to the IAH service and their notes record her concern that Mr C had experienced a “rapid deterioration” in his needs. Mrs D reported him more confused and having urinary incontinence and accidents. She said he needed prompting with dressing and would put on inappropriate or mismatched clothes and shoes. Mrs D explained Mr C currently received one call a day from the care agency, but with Mrs C now in hospital he needed more support.
50. The Council reassigned the case to the same assessor. They spoke to Mrs D before carrying out their assessment. They recorded Mrs D advising that Mr C’s memory had worsened, and he had suspected dementia. Also, that the care agency had told Mrs D, that Mr C had sometimes forgotten to eat his breakfast or take medication.
51. The second assessment again found Mr C had no unmet care needs. Many of the notes of that assessment are the same as that completed in June. However, the assessor recorded Mr C now had a Dosett box to help manage his medication. It said he could heat meals in a microwave. It said that Mrs D’s sibling reported that Mr C was “managing on his own” but the family continued to want the care agency to check on him.
52. After 22 August Mrs D arranged for the care agency to continue to visit Mr C once a day, increasing to twice a day from early September. That care cost just over £350 until mid-September 2022 when Mr C entered hospital. Later that month he sadly died.

My findings

53. I note the Council’s assessor did not have any detailed form to complete that went through all the Care Act eligibility tests set out at paragraphs 11 to 13 above. I do not find this inherently flawed, given the Government emphasis on flexibility. Also, clearly not all the eligibility tests were relevant to Mr C’s case or needed to be considered in detail. For example, the assessor could assume any needs Mr C had, arose from a physical or mental illness. They also did not need to explore eligibility tests around access to work or childcare, not applicable to someone in Mr C’s circumstances.
54. However, I would still expect to see a more detailed exploration of those eligibility criteria relevant to Mr C’s case. For example, an exploration of how Mr C could maintain nutrition needed to do more than consider if he had the functional ability to use a microwave. A person may have needs in this area if they do not recall when they should eat and / or if they cannot prepare food to manage a balanced diet. There is no evidence the Council tried to find out this level of detail in its assessments.
55. Both assessments omit consideration of matters I would expect to see, following the contacts by Mrs D that led to the Council assessing Mr C’s needs. So, in the June assessment, there is no record of the assessor exploring with Mr C who prepared his meals. Nor is there any record of his ability to dress in suitable clothes (and issues with dressing were also flagged when Mr C was in hospital). The assessment noted Mr C received support with some tasks from family, but there is no detail around that nor the family’s ability and willingness to keep meeting needs.
56. These omissions become more apparent in the August assessment, when Mrs D reported a significant deterioration in Mr C’s presentation. She provided details about Mr C’s urinary incontinence, problems with dressing and the report she received from the care agency of Mr C missing meals and medication. He had also lost any informal support provided by Mrs C who was now in hospital. But the assessment explored none of these matters.
57. I consider therefore the Council failed to carry out an adequate assessment of Mr C’s care needs on both occasions. This was a fault.
58. In considering what injustice resulted from this, I cannot say a more thorough assessment in June 2022 would have necessarily led to the Council meeting Mr C’s social care needs. I think it would be speculative to find this noting that Mr C’s family arranged no more than one call a day from a care agency after that time. This suggests he remained largely independent. I also note Mrs D only got back in touch with the Council in August 2022 because Mr C’s ability to self-care had worsened and he no longer had the support of Mrs C who was now in hospital. However, there is still uncertainty about whether the Council may have offered some social care to Mr C, if it had carried out a more thorough assessment. As I noted above, we consider this a form of distress.
59. On balance, I find it more likely the August assessment, if properly done, would have found Mr C had some eligible care needs. Because I find the statements made at the time by Mrs D persuasive in explaining his need for support with dressing, meals and continence care. I cannot say exactly what care package the Council should have arranged to meet those needs. However, I consider on balance it would, at the least, have amounted to one or two visits a day as Mrs D went on to arrange. I therefore consider that as well as the distress caused to Mrs D there was also on this occasion a loss of a service to Mr C.

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Agreed action

60. The Council accepts the findings set out above. It has agreed to provide a remedy to this complaint that I consider will provide a fair remedy to Mrs C and Mrs D, as well as to Mr D’s estate. It has also agreed to make service improvements designed to help prevent a repeat of the fault identified in this case.

Personal remedy

61. Within 20 working days of a decision on this complaint the Council will:
1. provide an apology to Mrs D in line with section 3.2 of our guidance on remedies: Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment to Mrs D of £750 – I explain my calculation for this at paragraph 62 below; and
3. repay Mrs C’s care costs for the period 22 May to 5 June 2022 subject to terms set out at paragraph 63 below; and
4. repay Mr C’s care costs for the period 22 August until his admission to hospital in September 2022, which total £352.
62. The symbolic payment of £750 referred to at paragraph 61b) encompasses the following:

• £150 to recognise the distress caused by the faults around the assessment of Mrs C’s needs;
• £200 for time, trouble and frustration waiting for a refund of money spent on care charges to meet Mrs C’s needs;
• £150 for the distress arising from the flawed June 2023 assessment of Mr C’s needs; and
• £250 for the distress arising from the flawed August 2023 assessment of Mr C’s needs.

63. Before making the payment recommended at paragraph 61c) the Council can ask Mrs D for proof of the charges incurred.

Service improvements

64. Part of our role is to consider what lessons councils can learn from complaints and what actions might prevent a repeat of the faults found. I note and welcome the Council’s comments on improved liaison between its complaints and adult care services. This should help prevent a repeat of the delay in this case in the Council refunding care payments. I considered no further service improvement required in this area.
65. But I consider there are steps the Council can take to improve its social care assessments. I cannot find systemic failings based on two flawed assessments. However, I trust the Council looks to assure itself that it assessors have adequate training and understanding of the eligibility tests set out in the Care Act. Also, that it has some procedure for monitoring the quality of those assessments.
66. What this case highlights is the importance of taking account of information provided by third parties, such as third parties or care agencies who know the person whose needs are being assessed. Assessments must show they have taken that information into account whenever it is relevant to one of the eligibility tests. Within two months of a decision on this complaint the Council has agreed that it will ensure it has briefed all social care assessors accordingly, to make clear our expectations in this area.
67. The briefing can be delivered in the way the Council thinks is most suitable. That could be in-person, electronically or incorporated into any pre-arranged training or update to relevant staff. But however it decides to deliver this, the Council should provide us with evidence it has complied with this recommendation, along with that required to show it has carried out the personal remedy set out above.

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Final decision

68. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr and Mrs C and Mrs D. The Council has accepted these findings and it has agreed action that I consider will remedy that injustice. Consequently, I can complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman