Decision Date: 30 October 2024
Summary
Calderdale Council was criticised for its delay in assessing care needs and the inadequacy of the assessment and the consequential inadequacy of the plan. Restitution was awarded to recognise the care costs the client incurred as a result of its delay. The LGSCO proceeded to consider the complaint about the fault in the assessment despite the 2022 date because the client only became aware of the potential fault following the outcome of the assessment in June 2023.
What happened
Mr X has ME/chronic fatigue syndrome. He asked the Council to assist him with his care needs in February 2022 and the Council made a referral to an occupational therapist (OT). It is not clear what happened but in July 2022 Mr X told the Council that at present he was paying for five hours of private care visits per week but could not afford to do this. The Council told him it had long waiting times for social care assessments but referred Mr X for one.
A Council OT spoke to Mr X and his carers who explained that his mobility was reduced and he was struggling to move around his home. The OT recommended an in-person assessment of Mr X in his home. A visit was arranged for October 2022 and it was recorded that Mr X refused mobility equipment as he did not think it would help. The occupational therapist referred Mr X back for a care assessment to determine the impact of Mr X’s ME on his care needs.
The Council carried out a s9 needs assessment in February 2023, identifying eligible care needs, and referred Mr X to its assessment ‘panel’ to decide on an appropriate care package. The day after the assessment Mr X wrote, putting details of his condition and its impact on his quality of life into writing.
Next, in April 2023, he was asked for evidence as to his diagnosis. He explained that there was a wait for GP letters but was eventually able to supply the evidence at the end of May 2023.
Mr X was regarded as needing five hours of direct payment funding per week to pay for his care, on 12 June 2023.
He told the Council the assessment was not a true representation of his care needs and it had failed properly to recognise the impact of ME on him.
In December 2023 the Council backdated Mr X’s direct payments to 24 February 2023, the date of its assessment, but no earlier and in no greater sum.
Mr X complained formally to the Council in January 2024. The Council responded in May 2024, asserting that it had properly recognised Mr X’s ME diagnosis.
Following Mr X’s complaint to the Ombudsman the Council acknowledged the delay in both Mr X’s social care assessment and occupational therapy assessment. It accepted that Mr X’s Plan was too ‘subjective’, contained inappropriate language and placed too much emphasis on Mr X ‘proving’ his condition. The Council agreed it should not have told Mr X it would close his case if he could not provide evidence to prove his diagnosis.
What was found
The Ombudsman reiterated that generally assessments should take no longer than six weeks to complete.
The investigator was satisfied that given Mr X’s health condition, the OT assessments carried out, and the input from Mr X’s carers, the Council could have identified Mr X’s care needs sooner and agreed to provide a care package, were it not for the delay in starting the process. The private care costs should not have been incurred. The recommendation was that the Council should pay Mr X the equivalent of five hours per week of direct payments for the period between 1 April 2022 and 24 February 2023. (That would be about £5000 by our reckoning.)
Taking 4 months rather than 20 working days (1 month) to respond to a complaint had also caused distress and uncertainty.
The Ombudsman extracted a commitment from the Council to provide an action plan setting out how it plans to address the long wait times for care assessments.
Points to note for Councils, professionals, people using services and their carers, advocacy groups and members of the public
This is a clear case of breach of the Care Act, in this report, regarding the principle emerging from established public law that the duty to assess needs must be discharged in a timely manner, with regard to all relevant considerations relating to the individual. It is not for rationing, in order to save money (the Penfold case made this position clear in the 1990s).
The Ombudsman’s six week guideline is within its power to set standards for good administration; the requirement for an action plan made of the Council as part of the disposal of this report suggests that the Ombudsman was worried about delay in other people’s cases too.
The situation is also a likely breach of s6(6) of the Local Authority Social Services Act, 1970, which requires social services councils to ensure that their statutory functions are able to be discharged properly – that being a direct duty on any such council. So the Ombudsman could have required this report to be aired at a full council meeting to ensure that extra funding was provided for taking on more staff to do this essential part of the job. Doing it properly, once started, would require training, on top. The fact that the man had spent 5 hours of his own money on care per week does not mean that that was the automatically determinative feature in planning what would be an appropriate response to the extent of his needs and the impact being sustained.
It is also completely inappropriate and a breach of the Guidance to insist on a diagnosis for one’s eligibility decision. The diagnosis is not the critical feature of either the right to an assessment based on the appearance of needs for care or support, or of the outcome of the assessment (the eligibility finding). The effect of the condition on one’s abilities to achieve across the domains of the eligibility criteria is what matters.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Calderdale Metropolitan Borough Council (24 002 749) report.
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