Ombudsman’s decision date: 19th June 2019
Ms X has a number of heath conditions, mental health conditions and Autism Spectrum Disorder (ASD). In July 2017 she wrote to the Council to request an assessment of her care and support needs.
The Council carried out a screening assessment which recommended Ms X be referred for a care needs assessment and that she may benefit from enablement. Ms X said the Council told her she was not eligible for an assessment (there are no Council records to support this), which led her to contact her GP in distress. The GP requested the Council carry out a face to face assessment with Ms X and also referred her for an assessment for suspected ASD.
The Council referred Ms X to the enablement team (where a team works with a person over a period of up to six weeks, that doesn’t constitute a s9 care needs assessment – it’s usually a prevention and reduction service.)
An appointment in August 2017 was made for an enablement officer to visit, but Ms X cancelled as she was unwell and felt she required an advocate, which was later arranged. (The Care Act and Guidance states that the Council must arrange an independent advocate to facilitate the involvement of the person in their s9 assessment if they will have substantial difficulties in engaging and have no-one else appropriate to support their involvement).
That officer referred Ms X onwards for a care needs assessment, stating that her case was complex and not suitable for enablement. The Council has acknowledged it failed to make the referral.
Only after Ms X complained to the Council in November for failing to carry out a care needs assessment was she contacted by an officer in January 2018 to arrange an assessment for February (the officer also contacted Ms X’s Advocate.)
The Council acknowledged and apologised for its delay, stating it was caused by the social work team requiring a more detailed handover from the enablement team which was not provided.
The assessment officer found Ms X had eligible needs as she could not manage and maintain nutrition, manage personal hygiene, maintain a habitable home environment, was not able to use her home safely or able to make use of services in the community.
She also noted Ms X was undergoing specialist consideration of an ASD and that Ms X considered her autism was at the root of her problems. However, there was no evidence to show whether the officer considered whether the officer needed specialist input from a third party in order to understand the effect of Ms X’s ASD on her needs or if she (the officer) needed to review the assessment once Ms X had a diagnosis. (The Care Act Assessment regulations require that assessors must have the skills, knowledge and competence to carry out the assessment in question. If they do not have experience in a particular condition, such as autism, they must consult someone with relevant experience.)
To meet her needs, the officer recommended a personal budget for 12.25 hours of support per week plus 2 hours per week for domestic and shopping support. This could be partly provided by three calls a day to Ms X.
The officer communicated back and forth with Ms X in order to obtain more information required by the domiciliary care panel, and informed Ms X of the panel’s decision (a personal budget of 12.25 hours of care per week and one hour per fortnight for domestic help), and told her she would complete the care plan.
This communication caused Ms X distress. She asked the officer to contact her Advocate as she was finding the information overwhelming- she did not understand what the panel or care plan was.
The call notes showed that the officer told Ms X that she the officer needed to speak to Ms X directly, as it was her own personal care plan. She had been communicating with Ms X rather than her advocate because the panel was requesting more detailed information and also said that Ms X had not asked her ONLY to contact her advocate.
In March Ms X made a complaint about the officer contacting her rather than her advocate to which the Council did not respond. Therefore Ms X made a further complaint in April. They responded in late May by email acknowledging they had overlooked Ms X’s original complaint.
The officer had sent Ms X an email in March outlining the agreed care plan (Direct payments, PA support 12.25 hrs weekly + additional 1 hour domestic care once a fortnight. A 45 min morning call, a 30 min lunch call and 30 min tea call). They received an email from Ms X’s advocate stating Ms X disagreed with the level of direct payments. It was finally agreed that Ms X would receive a personal budget of 12.25 hours per week plus 2 hours once a fortnight.
The case was then passed to the direct payments team. The records show Ms X’s advocate sent an email to the direct payments team notifying them that Ms X had not agreed with the care package and had decided to challenge it.
The Council just closed Ms X’s case. Ms X’s advocate stopped assisting her – because the commissioned advocacy service was expected to decide if a person is eligible for advocacy support.
However, the Care Act places a duty on the Council to appoint an advocate so it remains responsible for the actions of the commissioned advocacy service.
Ms X has said the Council should have retained her advocate to help her challenge the assessment.
In response to LGO enquiries, the Council clarified that it did not undertake care and support planning with Ms X as she had rejected the personal budget. Also that they did not carry out a financial assessment for her because they only do so after a care and support planning.
Ms X eventually accepted the personal budget following a stay in hospital because she needed care, but she strongly considered it to be insufficient to meet her needs.
In April 2018 Ms X was formally diagnosed with ASD. The Council’s records showed they were notified in May 2018. The NHS trust requested the Council review Ms X’s assessment in light of her diagnosis and additional needs associated with it. The officer replied to the email but there was no evidence to show whether she considered if Ms X’s needs should be reviewed in light of and following her diagnosis.
What was found
Ms X had requested a care needs assessment and the screening assessment recommended a care needs assessment. So the Council should have referred Ms X for a care needs assessment rather than to enablement.
The Council was again at fault as it delayed carrying out a care needs assessment for Ms X because it did not properly respond to the referral from the enablement team.
The Council was also at fault with reference to Ms X’s ASD diagnosis. At the time of assessment Ms X had not yet been diagnosed, but the officer was aware of her pending ASD assessment.
There was no evidence that the officer gave any attention to this fact. She should have considered if she could proceed with the assessment before the diagnosis, if she needed specialist input, or if Ms X’s care needs should have been reviewed after the ASD assessment. The Council’s failure to do any of those things was ‘fault’.
Further fault was shown as there was no evidence to show the Council had properly taken account of Ms X’s diagnosis of ASD after it came, or assessed her care needs in accordance with Care and Support Statutory Guidance. The Council actually went so far as to say to the LGO that it did not have evidence of an ASD diagnosis. This was definitely wrong as Council’s records showed that the NHS Trust informed them of her diagnosis. This was fault. The Council did not demonstrate the officer had experience of ASD. She should have sought input from another experienced practitioner as to whether Ms X’s care needs should be reviewed in light of her diagnosis.
The Council said it would look at the training it offers to staff regarding ASD as part of its review of the National Autism Strategy. The LGO suggested it would also be appropriate for the Council to review its procedures to ensure officers carrying out care needs assessments for people with ASD are aware they should seek appropriate specialist input if they do not have knowledge and experience of ASD.
The Council was also at fault for not retaining or providing an advocate to allow Ms X to challenge the personal budget. The Council also said that its system involved the commissioned advocacy service deciding if a person was eligible for advocacy support. The Care Act places a duty on the Council to appoint an advocate so it remains responsible for the actions of the commissioned advocacy service. The guidance shows an advocate should assist a person if they wish to challenge a decision or process. The advocate’s email to the Council’s direct payments team showed she was aware that Ms X wished to challenge the personal budget. So, the Council should have ensured it retained the advocate or provided another advocate to assist Ms X in challenging the personal budget.
The Council was not at fault in contacting Ms X rather than her advocate to discuss the panel’s decision on the personal budget. Ms X had not asked the officer only to contact her advocate at that time. It did not cause significant injustice to Ms X as the officer then contacted Ms X’s advocate at her request.
The Council should have started the financial assessment once it decided Ms X was eligible for support. The Council demonstrated that it is reviewing its processes to ensure it carries out financial assessments before it starts the care and support planning process.
The Council delayed in dealing with Ms X’s complaint. The Council’s complaints procedure provides it should respond within 25 working days. The Council greatly exceeded this target as it did not respond until 5 February 2018. It also acknowledged in its response of 25 May 2018 that it had failed to deal with Ms X’s complaint of March 2018.
These faults did cause injustice to Ms X.
The Council’s delay in carrying out the assessment caused distress to Ms X. It also put Ms X to avoidable time and trouble in having to contact the Council again to chase the assessment. The Council’s lack of clarity about her care plan and not having an advocate to help her challenge the personal budget also caused distress to Ms X. The Council’s delays in dealing with Ms X’s complaint and failure to deal with her complaint of March 2018 also caused avoidable time and trouble as Ms X had to make a further complaint.
The LGO found the failure properly to consider the potential significance of Ms X’s impending ASD assessment and whether Ms X’s care needs should be reviewed following the diagnosis cast doubt as to whether the Council properly identified Ms X’s needs. The LGO also doubted whether the personal budget provided would then have been defensibly sufficient to meet her needs.
The LGO stated that the Council should remedy this injustice by carrying out a reassessment of Ms X’s care needs. This should be carried out by an officer with experience of ASD or with input from an officer who has knowledge and experience of ASD. If, following the assessment the Council finds Ms X has increased care needs and her personal budget should be increased then it should backdate the payments to July 2017 when Ms X first requested an assessment. The LGO recommended that the council should also send a written apology and make a payment of £250 to acknowledge the distress and avoidable time and trouble caused to Ms X.
Points for councils and for clients and families or advocate:
- Has your council sorted out a system at the front door for a competent member of staff to allocate the right sort of assessor to a person’s presenting problem? Ie face to face if their capacity is less than full? Person-centred, in terms of the manner and timing of the assessment according to when the person is at their best?
- Has your council sorted out a system for recognising the complex decision-making that is required around advocacy under the Care Act? A screening assessment is enough to put you on notice, if you are clued up, about the potentially substantial difficulties that a person would have in being properly involved in the processes that your council runs, and hence that means that you need to consider whether or not they have anyone else appropriate to support their involvement informally, and if so, do they consent to that person’s so doing, if the person with substantial difficulties has at least the capacity to understand that they don’t have to have their relative take on that role? Not every 19 year old with learning disabilities wants her mum there for discussing whether her sex life is affected by coercive control, or is even known about by her parents.
- If the person does not have anyone appropriate and willing to support their involvement informally, then advocacy functions are triggered and are not able to be delegated properly in terms of the question of eligibility to the service itself.
- The advocate’s service cannot be limited to a standard number of hours: this report underlines that if a person wants to challenge the package, they are going to need the advocate to do an advocate’s REPORT under the legislation, and also support them in what para 10.86 of the Guidance says should be a management review, not just a signposting to complaints!
- Does your council arrange for care and support planning even when a person says “You what?” when they first hear of the indicative budget? We are aware of many councils who think that if a person says no to the first sum mentioned, they’ve said thanks but no thanks, and that that is the end of the matter.
- This is appalling practice – the indicative budget is not any kind of concluded decision at all, and care planning law makes it clear that the plan has to be rationally able to be shown to cover all the assessed eligible needs, not that the needs have to be fitted to the sum first offered! Care planning law also says that any parts of the eligible assessed needs that are assumed by the council to be availably met from a willing and able informal source of free support need to be identified so that everyone knows where they stand. So it stands to reason that care planning is a duty – a statutory duty – even if the person doesn’t agree the budget.
- If the council doesn’t start financial assessment BEFORE the finalisation of the budget, it can’t possibly comply with s25, which requires that the care plan contains the figures for the charges so that the figure for the council to find in order to make up the entire budget regarded as necessary for spending, is clearly apparent.
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The full Local Government Ombudsman report of London Borough of Lewisham Council’s actions can be found here