Enfield at fault for delaying an assessment over disagreement over the independence of the social worker

What happened

In February 2021 the housing department requested an Occupational Therapy assessment for X. X also contacted the council requesting a OT assessment. The assessment was completed in April 2021. X was unhappy with an OT assessment report and complained to the Council which prompted a Care Act needs assessment.  This was done via telephone in July 2021. X was unhappy with the way the needs assessment was conducted and complained and so the council appointed a new social worker. By the end of September, X was reluctant to have an assessment until their housing position was resolved (subject to a separate investigation) but was happy for an independent assessment to be carried out.

The Council proposed two independent social workers in March 2022, but X did not consider them to be independent.  X’s position was that they would find an independent social worker to carry out the assessment, and the Council should pay for it without other involvement. In July 2022, the Council responded by stating that X had not provided adequate information to allow an assessment to proceed, and that X had refused to allow them to undertake one.  Therefore, it was not required to carry out an assessment. The relationship with the two internal social workers who had worked with X broke down which the Council attributed to X’s “demands, conduct, behaviour and overall attitude”.

X complained to the ombudsman that the council failed to carry out a Care Act assessment and as a result of this their housing situation could not be properly assessed and their care and support needs were not being met.

What was found

The LGSCO stated that the Council had allowed the matter to drift. There were delays in the assessment process and the Council should pay X £200. Eight months after the Council agreed to a further assessment, it had not happened, because the staff were still trying to find a way forward that X was happy with.  However, they concluded that they were not obliged to carry out an assessment because X had refused one.

The Ombudsman said the Council must carry out an assessment where it appears an adult may have need for care and support. Any assessment should be person-centred but there is no requirement for that to be done by an independent assessor, even if that is the person’s preference.  It just needs to be competent. Provided that the Council made sound and evidence-based decisions, having regard to X’s wishes and circumstances, then it was entitled to proceed in the way it considered appropriate.

Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public. 

Section 9 of the Care Act states –

  • Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—
  • whether the adult does have needs for care and support, and
  • if the adult does, what those needs are.

The duty is triggered when the council receives notification of appearance of need, whether or not the council thinks the person has eligible needs.

There is NO need for consent; if there were, incapacitated people would be shut out of the Care Act, because an assessment is not something that gives rise to any personal cause of action, even if unwanted, for Mental Capacity Act purposes. It’s not an assault or a trespass or any other kind of tort.

There is only the means to refuse an assessment, effectively the first time round – and even THAT gives way to a perception that the refuser may lack capacity to make an informed decision about that, or is experiencing abuse or neglect.

There is no statutory timeframe for completing an assessment and the guidance points out that person-centred assessments vary in the length of time they take to complete depending on the individual’s personal circumstances. However in accordance with public law principles the duty to assess should be carried out in a ‘reasonable’ time frame. So if there is a particularly long delay and no good reason to justify this then the delay will be considered ‘unconscionable’ and a person can get a court order obliging the council to do its duty, in theory.

No written assessment was ever produced as it was overtaken by X’s complaints. An assessment is the only way to obtain an eligibility decision, but even if a future assessment identified unmet needs that does not necessarily prove that those needs were there before.  So a token payment only was recommended.

This report demonstrates the ability of the ombudsman to recommend redress in response to an ‘unconscionable’ delay even if there is no other injustice – this is a free route for people to challenge councils when they are not carrying out their legal duties, but only suitable if one has the time to wait.

A referral to the Monitoring Officer, on the other hand, should generate a reaction almost immediately, in terms of a likely contravention of an enactment or rule of law.  It must be a clear cut case, however, despite the reference to likelihood of a contravention; and in a situation where a person has refused to co-operate, then the reality is that the Monitoring Officer may find that there IS a refusal to be assessed, on the basis that refusal to co-operate is tantamount to discharging the council from its duty (as in Muriqi Kujtim)

Readers may be interested in our analysis of X’s position that the council would find and appoint a social worker and the Council would pay for the assessment without any other involvement.  That was a hopeless expectation because that is not what a council is obliged to do, even if a person is dissatisfied with a prior assessment. The law is that a council is entitled to discharge its functions through internal staff or through delegation of the assessment function: the Care Act allows for it. But when a delegate is given that function, they are doing it ON BEHALF of the council, as a matter of contract, and as an agent of the council in terms of public law.

The council retains legal liability for the acts of that outside delegate, so of course is entitled to instruct that delegate in the same way that policy or practice guidance might be given to an in-house member of staff. A delegate may well be someone practising as an independent social worker, but in fact an independent social worker taking on the Care Act assessment role is no more able to ignore the legal framework than an employed social worker.

An independent social worker, in the true sense of the word, is someone who might be appointed by a court, as a witness for the benefit of the court – as to this that or the other professional approach or culture, or by an individual who wants to challenge a decision, in which case that individual would be the one paying for the work. 

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site. The full Local Government Ombudsman report on the actions of London Borough of Enfield Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/21-009-856

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