Decision Date: 20th August 2024
Summary
The Council was found at fault for delaying the response to a complaint, in the context of the complainant being led to expect a service from the integrated care service’s OT service, some 4 months after her assessment.
The clearly identified need was for access to the OT service provided by the Devon Partnership Trust to the Council’s autism and ADHD clients.
What happened
Mrs X complained to the Council regarding a delay to an aspect of her social care assessment in September 2023.
Mrs X wanted to use an Occupational Therapy service provided by the Devon Partnership NHS Trust, which she had been assessed as needing, after a needs assessment. This service was provided by a partnership agreement to people under the care of Devon County Council Autism and ADHD Team. In order to access this service, a referral was needed by the Council to the Trust, referencing one’s connection with the referral team.
The local process envisaged the Council ‘completing’ assessments within 28 days; however, there was a caveat that timescales would vary due to the volume of requests at any given point. [However, it is clear from the very brief report that Mrs X had been assessed and that delay in the assessment itself was not at the heart of the problem].
[It is not clear from the report whether the rest of any care plan arising out of the assessment was what had stalled on account of the problem with the OT referral please note.]
The Council responded to her complaint 4 months later, in January 2024.
The response from the Council stated that the referral it had made for the Trust’s Occupational Therapy service was initially accepted but that a decision was made not to accept a referral without an allocated Devon County Council worker being in place.
Mrs X, dissatisfied with this response and also feeling that she had missed out on the opportunity to receive the input she was due, filed a complaint with the ombudsman. She stated that it caused her stress and impacted on her physical and mental health.
On being found at fault the Council apologised for the delay in response due to capacity issues in the team, paired with a high demand, and accepted responsibility for this.
What was found
The Council’s complaint response had still not provided any information about accessing the OT service, as had been promised.
The LGSCO did not find fault with the Council on account of the Trust’s own decision to refuse the referral, but rather in the failure to deal with gaps in capacity and follow-up, and with the complaints process itself, such that Mrs X’s referral to the Trust’s OT service could be effected, properly.
To remedy the injustice done to Mrs X, the Council agreed to pay her £200 for the uncertainty and time and trouble caused to her as well as £400 for the missed care provision due to the delay. They also agreed to issue an apology. [The report does not explore whether she had spent money herself on meeting her own needs for OT input, but the implication is that she had not – otherwise a claim for restitution could have been made, potentially.]
The assessment itself clearly identified a need for the OT service. The non-discharge of the duty to meet that unmet need was service failure. That deserved compensation.
Due to the fault found, the Council also created an action plan to address the necessary service improvements to reduce delays.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
People should not have to chase responses supposedly covered by service level agreements between partners to an integrated health and social care service, in order to progress their care. But the NHS is a separate organisation, in legal terms, and does not simply jump to attention when input from its staff is needed; the essence of the NHS is that one waits in line.
A duty is triggered by the finding of eligibility under the Act, and the extra informal requirement seemingly interposed as between the organisations, that a worker needed to be allocated and in place before one could get any further (albeit maybe justified in some instances) was simply not explained to the public.
In our experience, the input of an OT is sometimes listed as part of the process towards completing the Needs Assessment in the first place, when a matter of judgement from an OT with OT skills, is relevant to the consideration of what would meet needs. That can stretch the whole process out for much longer, before eligibility decision-making is done. Putting extra conditions or criteria for accessing that individual professional is then, in practice, a form of illicit gatekeeping which the Care Act does not allow for, but for which there is no remedy. A well-integrated system would ensure that these extra hoops, which are not necessarily WRONG in principle, are reasonable and understood by all staff as not overriding the duty to operate, in a timely fashion.
It’s not clear whether the OT’s judgement about something was required here, or whether it was the OT’s professional input as a service, which was regarded as needed.
The LGSCO has taken appropriate action in this case due to the situation in not only making sure that Mrs X was compensated for the injustice but also overseeing the implementation of an action plan to reduce delays. Taking steps to improve the experience of service users is bound to be more effective for the majority of service users than obliging them all to gird themselves up to make complaints.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Devon County Council (23 017 232) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community when posted.
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