The Ombudsman's final decision
Summary: Mr X complains on behalf of his brother (Mr Y) that the Council failed to complete Mr Y’s social care assessment and respond to his complaint.
We find the Council completed the assessment in line with Care and Support Statutory Guidance, but it did not deal with Mr X’s complaint according to its policy. The Council has agreed to apologise to Mr X and pay him £150 for his time and trouble.
The complaint
Mr X complains on behalf of his brother (Mr Y) that the Council failed to complete Mr Y’s social care assessment and respond to his complaint.
Mr X says this deprived Mr Y of day care provision which was a loss of service and affected Mr Y’s quality of life.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) Mr X complained to us at the end of September 2021, which is 17 months after he first became aware of the issue. However, I have decided to investigate as our services were closed for three months between March and May 2020 due to the Covid-19 pandemic. Mr X was also waiting for an outcome from the Council which was delayed and had additional care duties while Mr Y was in hospital. The alleged injustice has also continued for more than a year.
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) We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I discussed the complaint with Mr X, sent enquiries to the Council and considered documents provided by Mr X and the Council.
Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.
What I found
Relevant law and guidance A council must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9) The Care Act 2014 spells out a council’s duty to meet an adult’s eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18) An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being: Managing and maintaining nutrition Maintaining personal hygiene Managing toilet needs Being appropriately clothed Making use of the home safely Maintaining a habitable home environment Accessing work, training, education Making use of facilities or services in the community Carrying out caring responsibilities.
(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2) If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25) Statutory Guidance explains a council should review a care and support plan at least every year, upon request or in response to a change in circumstances (Care and Support Statutory Guidance, Paragraph 13.32) Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
The Court of Appeal decided: A council’s duty under section 9 of the Care Act 2014 is not to achieve the person’s desired outcomes but to assess whether the provision of care and support would contribute to those outcomes The wishes of the person may be a primary factor, but they are not an overriding consideration The final decision on how to meet needs is for the council.
(R oao Davey v Oxfordshire CC) The Council’s adult social care complaints procedure states: Complaints should be resolved within 6 months of receipt.
Complaints should be assessed for early resolution by contacting the service user, understanding their issues, and identifying whether an agreed resolution is possible, or if the complaint can be resolved in 1 working day.
Any early resolution or a 1-day outcome is recorded on the Council’s system.
Complaints which cannot be processed by early resolution must be processed according to the formal complaints process. This includes assessment, investigation, and a formal outcome letter to the service user.
What happened Mr Y has a learning disability. He is eligible for care and support and his previous care and support plan had four days of day care each week. As well as council-arranged day care, Mr Y also has a direct payment which is used to part-fund his day centre activities but can also be used flexibly for other activities.
In late 2019, the Council reduced Mr Y’s day care to three days a week (Tuesday, Wednesday, and Friday). It also arranged community sessions on a Monday. Mr X said the community sessions were not suitable for Y because he had difficulties travelling between the different centre locations.
Mr X’s complaint Mr X complained to the Council in January 2020 about a lack of day care on Monday, about Mr Y not having an assigned social worker and the review of the care and support plan being due.
A Council officer telephoned Mr X and discussed his complaint. The officer then sent Mr X an email saying: It would allocate a social worker to complete Y’s review.
The social worker would collect updated information.
It would listen to Mr X’s concerns and provide him and Y suitable support options.
It could not guarantee Mr X’s wishes but would obtain a clear understanding of Mr Y’s care needs.
Mr X said he remembers receiving an email from the Council, but he did not open it as he did not recognise the sender’s name. He said he found out later in the year it was about his complaint after he had made further enquiries.
The officer sent an update to the complaints team which included instructions to send Mr X a written response to his complaint.
The officer also mentioned that while Mr X was satisfied with the suggestions made (see paragraph 20), he did not want the complaint closed until Mr Y had the additional Monday provision. The officer noted this outcome was dependent on the outcome of the assessment and review of the care and support plan.
There is no evidence the Council sent Mr X a formal response letter to his complaint.
Mr X also confirmed that he did not receive a written complaint response.
The Council’s social care assessment The Council’s internal emails show it allocated a new social worker immediately. The social worker contacted Mr Y at the end of January and arranged an assessment for mid-February.
The assessment noted Mr X’s wishes for Y to have day care on Mondays. However, it concluded Y’s care needs in respect of making use of facilities or services in the community were appropriately met through the community sessions.
The assessment states the social worker reminded Mr X, that Mr Y could use his direct payments flexibly to fund his preferred Monday activities if he was unhappy with the community sessions.
The social worker also called Mr X after the assessment to explain Monday day care was not possible and the Council was exploring access to alternative community-based services, but Mr X was not satisfied.
In late February, council officers met to discuss Mr Y’s case. It was agreed that an advocate would be assigned to better understand Mr Y’s wishes at a meeting arranged for mid-March. Unfortunately, the Covid-19 lockdown followed soon after and interrupted plans.
Mr X told me that Mr Y did not attend the day centres in person again until April 2021. However, the centres remained open for online services until they formally re-opened for in person services from Spring 2021. The evidence shows Mr Y participated in the online sessions in November and December 2020.
The Council’s case notes also show it kept in frequent contact with Mr X and Mr Y throughout the lockdown to check on their well-being and provide any necessary support. This included help when Y was hospitalised and with accessing online day services.
In November the Council sent Mr X a letter saying it had completed the review of Mr Y’s care and support plan and set a further review date in three months, while it explored alternative community services. It explained Mr Y had not been attending day services due to Covid-19, but his direct payments remained in place.
A new social worker was allocated in June 2021. Mr X said the new social worker was not aware of the case history and his previous complaints. Mr X says he spent a long period in 2021 calling the Council and waiting for it to address his January 2020 complaint. He says the social worker also sent emails to various officers seeking an update on his behalf, but nothing happened.
In August 2021, the Council had a meeting with Mr X and Y to discuss further support for him and Y.
In September, Mr X again contacted the Council to ask for an update about his complaint. An officer replied and explained the email mentioned in paragraph 20 (above), but Mr X was not satisfied and approached the Ombudsman.
The Council has since completed a further review in February 2022. It did not recommend any changes to Mr Y’s care and support plan. The Council has continued to liaise with Mr X and Mr Y to try and find Monday activities that Mr Y will enjoy and address transport issues. It is also engaging with Mr X to understand his needs.
Was there fault and if so, did this case injustice?
i) Failure to complete Mr Y’s social care assessment There is no fault. The Council completed Mr Y’s social care assessment in February 2020. The social worker followed up with a call to Mr X to explain the outcome. The Council also arranged an advocate for a meeting to further understand Mr Y’s wishes. Unfortunately, the Covid-19 pandemic interrupted those plans. This was not within the Council’s control.
Mr X said Mr Y missed out on services due to the Council’s actions and this upset Mr Y and affected his quality of life. But in-person day services were closed due to the Covid-19 lockdown and Mr Y participated in the online sessions. So, while in person-services were unavailable, this was not fault because it was not within the Council’s control. I am satisfied the Council took all reasonable steps to offer provision that was available online.
The Council has a duty to meet Mr Y’s eligible needs in line with Section 18 of the Care Act 2014, but this does not mean it has to provide Mr Y with day care Monday to Friday. The Council completed the review and was satisfied the community service and three days of day care met Mr Y’s eligible needs. I cannot criticise the merits of the Council’s decision which has been properly reached.
The Court has confirmed in the Davey case (see paragraph 15) that a person’s needs are distinct from their wishes. The Council has a duty to meet eligible care needs. It has no obligation to meet Mr X’s preferred wishes for Mr Y. The Council has explained its reasons for keeping the day care provision to three days and clarified that Mr Y can use his direct payment if he wants to attend an alternative paid service. My view is this is in line with the Davey case and so there is no fault in the failure to provide day care on a Monday.
ii) Failure to respond to Mr X’s complaint The Council’s complaint policy outlines an early resolution procedure as well as a detailed formal complaint process. An internal email shows there was an intention to provide a formal written complaint response, but this did not happen. This was poor complaint handling and was fault. It caused Mr X avoidable time, trouble and inconvenience seeking updates and eventually in contacting us.
Agreed actions
The Council has agreed, within one month of my final decision to: Write to Mr X and apologise for not formally responding to his complaint.
Pay Mr X £150 for his avoidable uncertainty, frustration and time and trouble in trying to resolve his complaint.
Final decision
I find the Council completed the assessment in line with Care and Support Statutory Guidance, but it did not deal with Mr X’s complaint according to its policy. The above agreed actions are a suitable way to remedy the injustice.
I have completed my investigation.
Investigator's decision on behalf of the Ombudsman