Decision Date: 7 December 2022
What happened
Mrs Y brought a complaint on behalf of her adult son, Mr X.
In 2017, the Council completed a care and needs assessment for Mr X. Mr X declined the support. In 2018 the Council advised they would close his case but said that Mr X could refer himself again in the future.
In September 2020, Mrs Y asked the Council’s Children’s Services to carry out a carer’s Transition assessment for her, regarding the support she provided to her two other children who were coming up to 18 years of age. She was told that it could not include the support she provided for Mr X because he was already an adult.
A separate carer’s assessment was arranged by the Adult Social Care (ASC) team, through another organisation they commissioned to complete these. This assessment focused on Mrs Y’s support for Mr X. Mrs Y confirmed that Mr X had not recently received, and was not waiting for any assessment from the council regarding his own care and support needs.
In November 2020, Mrs Y’s other carer’s assessment, relating to her role supporting her younger children was completed. When her children turned 18 in April and June 2021, Mrs Y again contacted ASC about their support needs.
On 31st August 2021, Mrs Y made a referral to ASC for a Care Act assessment of Mr X’s needs and support saying that she had already previously told the Council about his need for an assessment that the Council should have asked her about Mr X in response to her carer’s assessment.
On 3rd September 2021, the ASC contacted both Mr X and Mrs Y and informed them that there was a waiting list, and so, it could not accurately predict when the assessment would occur.
Mrs Y complained to the council in January 2022 about the delay regarding Mr X’s assessment. The Council responded on 27th January 2022, offering Mr X an assessment appointment in February. However, it was cancelled when Mr X did not reply. Another appointment was arranged for April, but the stance seems to have been taken that an assessment could not be completed as Mr X declined to engage with the social worker.
On 31st May 2022 Mr X’s assessment was finally completed [nb. the report does not say how he was convinced to engage or whether it was done without his active co-operation] and he was assessed as having eligible needs by the Council who offered four hours of support from a personal assistant per week.
What was found
The LGSCO concluded that being provided with the information in Mrs Y’s carer’s assessment, by the organisation commissioned to complete it was not, on its own, enough to amount to a referral or a request by or on behalf of Mr X for assessment under the Care Act. Therefore, the Council was not in fact formally asked to carry out an assessment of Mr X’s needs in the period from September 2020, until Mrs Y made the fresh referral on his behalf on 31 August 2021.
However, after the referral was made, the council did not then contact Mr X until 5 months later (27th January 2022). This was not a reasonable timescale for completing the assessment and the council gave no explanation for the delay other than the high demand for assessments creating a waiting list. The failure to commence the assessment within a reasonable timescale was a fault.
The council agreed to backdate Mr X’s direct payments for personal assistant support to September 2021. But the delay caused injustice to Mr X and Mrs Y as it increased the level of uncertainty surrounding whether Mr X’s needs would be assessed and whether any support would be offered. The council agreed to apologise to Mr X and Mr Y for the delay within four weeks of the final decision and provide evidence of doing so.
The Council also confirmed action taken to reduce delays in the assessment process. It said that it had:
- reviewed its autism service in January 2022, due to the increased demands of the population for assessments which it was struggling to support;
- developed a proposal to address the demand on the service and acknowledge the need for closer local relationships with other agencies. It proposed moving the work currently completed by the autism service into locality teams and for this to sit within the mental health social care team’s remit; and
- completed the transfer of this work in June 2022.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public…
The complaint highlights misunderstandings of the Care Act from both sides, in our view.
Mrs Y interpreted her own carer’s assessment as automatically triggering a care and needs assessment for Mr X. The law is clear when and on what basis a council should assess:
s.9 Care Act 2014
Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—
a. whether the adult does have needs for care and support, and
b. if the adult does, what those needs are.
We are not sure we can agree with the LGSCO on the line taken on the appearance of need not being enough to pass that test, in this case, but it may be that Mr X’s previous stance on assessment was still informing the approach to the case, and we don’t know what Mrs Y’s assessment for carer support actually revealed, which would be key to the question what it said was the situation for Mr X.
In principle, we think that a carer’s assessment is triggered when it appears that the carer is struggling, and that from that process, it must be capable of being inferred from a carer’s assessment request that the individual being cared for is presenting an appearance of need – unless perhaps the outcome of that assessment is an assurance of such support for the carer that the carer is persuaded that there’s nothing more that needs to be done for the person cared for.
The Council relied on the idea that Mr X had previously refused support and so they had closed his case in January 2018. They said that he could refer himself in the future. The complaint report assumes that the carer’s assessment is not enough to meet the statutory threshold for a s9 assessment. There is no lawful justification for treating a closed case where new facts are presented, any differently from a first time referral, in our view, when it comes to anyone’s right to assert that need under s9. We suspect it has much to do with a perception in councils that a person has got to consent to an assessment first even when referred by someone else.
The wording in the guidance is not very precise as to what a reasonable amount of time might be but it isn’t lawful to assume that any old difficulty justifies a waiting list, or that the council need not apply rational thought to how to ORDER that waiting list, if one is inevitable
“A council must carry out the assessment over an appropriate and reasonable timescale considering the urgency of needs and any variation in those needs. It should keep the person updated throughout the assessment” – Care and Support Statutory Guidance 2014, Paragraph 6.24
Five months before even starting one was seen as an unreasonable amount of time. We do not disagree but we think that the LGSCO ought to have reminded the council of the approach of the Court in the Penfold case from 1998 in which it was held that resources are irrelevant at the first and second stages of assessment (starting an assessment because the duty has been triggered, and when making an eligibility decision). A local authority has no discretion to refuse to carry out an assessment under the NHSCCA 1990 on the ground that lack of resources means that in practice there is no prospect of making a community care service available to the applicant.
Also, section 6(6) of the Local Authority Social Services Act is still in force from 1970 and says this, so as to ensure that waiting lists for services that it is the council’s duty to deliver, do not become the norm:
(6) A local authority which have appointed, or concurred in the appointment of, a director of social services, shall secure the provision of adequate staff for assisting him in the exercise of his functions.
The Council also failed to keep Mr X adequately informed as the only information he got was that there was a waiting list. This was insufficient in terms of decent practice, too.
The full Local Government Ombudsman report on the actions of Kent County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/21-018-229