Summary: Mrs X complained about the Council’s response to her request to increase her support after her health deteriorated. We only found fault with time taken to carry out the assessment. The Council has agreed to apologise for the distress caused. There was no fault with the assessment itself. The Council carried out a review and decided Mrs X’s needs could still be met within the existing personal budget. This was a decision the Council was entitled to make having carried out a face-to- face review of her circumstances.

The complaint

1. Mr Y complains on behalf of his mother, Mrs X, about the Council’s assessment of her care and support needs. In particular, he complains the Council:
1. failed to acknowledge Mrs X’s physical and mental deterioration in the assessment;
2. raised concerns about Mrs X receiving care from a family member while receiving a direct payment; and
3. took too long to carry out the assessment;
2. Mr Y says his mother’s care need are not being properly met and has led to an increased risk to her health and well-being.

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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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 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. I spoke to Mr Y and reviewed the information he provided.
7. I made enquiries with the Council and reviewed the relevant law and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and policy

Care and support needs

9. A council carries out a care needs assessment to decide whether an individual has care needs that it must meet. It then completes a care and support plan which sets out how it will meet those needs.
10. The Court of Appeal decided that the wishes of the person may be a primary factor but they are not an overriding consideration. (R (Davey v Oxfordshire CC)

Reviews

11. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Direct payments

12. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.
13. The Council’s policy states direct payments cannot be used for employing family members living in the same household.

What happened

14. I have set out below a summary of the key events. But it is not meant to show everything that happened.
15. Mrs X has several age-related health conditions. Until 2022, Mrs X lived independently. Since 2020 she received a direct payment from the Council. She used this to employ her granddaughter (Miss P) as her personal assistant for 15 hours per week. Miss P helped Mrs X with personal care, meal preparation and other areas of daily living.
16. In 2022, Mrs X had a fall and her health deteriorated. No longer able to live independently she went to live with her son, Mr D, and his family. Due to a change in her own circumstances, Miss P was unable to continue in her role as personal assistant. Mrs D took over this role.
17. In November 2022, Mr Y told the Council about Mrs X’s deterioration and said the direct payment should be increased. Mr X waited two months for a response and in the end, contacted the Council again in January 2023.
18. The Council carried out a review at Mr D’s home in late February 2023. Mr Y, although he intended to attend the review, was unable to do so on the day. Instead, the social worker (Officer J) spoke to Mr Y over the phone and carried out the review with Mrs X and Mrs D. Officer J spoke to Mrs X in her preferred language.
19. Officer J was told about Mrs D acting as personal assistant. Officer J explained this was only allowed in exceptional circumstances.
20. The review did not lead to an increase in support. In a phone call to Mr Y, Officer J explained:

• Mrs X’s assessed care needs could be still be met within the existing budget; and
• direct payments were not generally allowed when the carer lived in the same household as the service user.

21. In response, Mr Y made a formal complaint. He said:

• Officer J should have postponed the review until Mr Y was able to attend;
• Officer J took advantage of his absence and failed to address the issues he was concerned about. He believed the assessment was biased and prejudiced;
• Officer J should not have suggested the direct payment arrangement with Mrs D was not permitted when it had already been authorised;
• the support plan was inadequate to meet Mrs X’s increased needs and her well-being was suffering as a result; and
• the review process took too long.

22. The Council did not uphold Mr Y’s complaint. It was confident that Mrs X’s assessed needs could be met within the existing budget and there was no delay or fault with the review process. It invited Mr X to discuss whether there were exceptional circumstances that would allow the Council to deviate from its policy.

23. Dissatisfied with this outcome, Mr Y, brought the complaint to the Ombudsman on behalf of Mrs X.

Analysis

24. It is not the Ombudsman’s role to say what a person’s needs are, or what services they should receive. The Ombudsman’s role is to consider if a council has followed the correct process to assess a person’s needs. In doing so we look at what information the council considered. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user disagrees with its decision, or outcome of an assessment.
25. I will consider Mrs X’s separate areas of complaint below:

The assessment

26. I have not found the Council to be at fault.
27. The review involved Mrs X and Mrs D, her main carer. There is evidence of both parties having contributed meaningfully to the discussion. Officer J spoke to Mrs Y in her preferred language. Officer J recorded the details of how her family supported Mrs X and the impact of her recent fall.
28. In response to the request for massage therapy to relieve pain, the Council explained that pain management was a health, rather than a social care need. It was appropriate for Officer J to signpost Mrs X to her GP and there was no fault with this approach.
29. I have also considered whether Officer J should have delayed the review until Mr Y was able to attend in person. In my view, there was no obligation for her to do so because I am satisfied she was able to gather all relevant information from Mrs X and Mrs D. In any event the case notes show Mr Y spoke to Officer J over the phone at the start of the assessment where he gave an outline of the situation.
30. As stated in the Council’s complaint response, Mrs X was assessed as having capacity to participate in the review and was happy for it to continue without Mr Y.
31. I am satisfied the outcome would not have been different had Mr Y been present. In reaching this conclusion, I have considered the points Mr Y raised during his complaint to establish whether any significant matters had been missed by Officer J. There is no evidence to suggest they were. Officer J was aware of the decline in Mrs X’s health that led to her moving in with Mr and Mrs D but was satisfied her current needs could still be met within the existing support plan. This was a professional decision Officer J was entitled to make.
32. Mr Y says the assessment documents and inadequate are and support his assertion that Officer J failed to recognise Mrs X’s increase in care need. I disagree. She recorded the fact there had been a deterioration in heath and gave a brief description of Mrs X’s capabilities. The fact she was unable to function as well as she had before the fall, did not automatically mean the Council had to increase the direct payment. Officer J’s conclusion was that Mrs X’s needs could still be met within the existing budget. I appreciate Mr Y strongly disagrees with this, but in the absence of fault in the assessment, I cannot question the outcome.

The direct payment

33. Mr X also says the Council was wrong to raise the issue of Mrs X living in the same household as Mrs D. The case records suggest this arrangement may have been agreed by the Council prior to Officer J’s review, which I believe was the point being made by Mr Y. When the Council attempted a dialogue with Mr Y about this issue, he refused to do so and ended the call.
34. Any uncertainty about whether the direct payment could have been resolved if Mr Y had engaged with the Council. The Council has a duty to ensure public funds are spend appropriately and so I do not criticise the Council for making further enquiries as part of the assessment process event if it had been informally agreed previously. There was not fault here.
35. I have noted the Council has taken no action to withdraw the direct payment since it became aware of Mrs D’s employment. The Council has also carried out a further assessment in June 2023 in which the arrangement was not questioned. I am therefore satisfied the Council has now accepted exceptional circumstances exist.

Delay

36. The Council’s complaint response says the review was requested on 7 February 2023 and the assessment took place on 20 February 2023. Based on this, Mr Y’s complaint about delay was not upheld. Had this been the correct timeline, I would have agreed with this conclusion.
37. However, this timeline was incorrect.
38. The case records show that Mr Y asked the Council to carry out a reassessment on 9 November 2022. He repeated the request in early January 2023 and the Council first contacted him on 19 January 2023.
39. It is disappointing this was not acknowledged in the Council’s complaints response and suggests Mrs X’s case notes were not properly considered.
40. In my view, Mrs X waited too long for the Council to response to the reassessment request. The problem arose because Mr Y made the request to an officer in the direct payment team, who then had to pass it on to the relevant assessment team. From what I can tell, the request was effectively lost in the system. This should not have happened and is fault.
41. This fault led to Mr Y having to repeat his request and I am satisfied the delay caused some distress as it was felt Mrs X was not benefiting the support she needed. As there was not change to Mrs X’s support plan, Mrs X has not been denied a service, the injustice is limited to distress. This has been reflected in recommendation I made to the Council.

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Agreed action

42. The Council has agreed to take the following action within four weeks from the date of my final decision:

• Apologise in writing to Mrs X and Mrs Y.

43. The Council should provide us with evidence it has complied with the above action.

Final decision

44. I have found the Council to have acted with fault because it took took long to respond to a request for an assessment. The Council has agreed to apologise. 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