Decision Date: 21 November 2024
Summary
Mr X complained to the Council about a flawed reassessment of his needs, delay in doing one at all, and for a reduction in his direct payments. The Council was only found to be at fault for the delay in his reassessment of needs, in light of the circumstances giving good reason for the other decisions.
What happened
Mr X has a number of conditions that impact his daily life. In April 2021, the Council carried out an assessment of needs and concluded that he needed a package of care to be provided through direct payments. Mr X used these to commission a mentoring service.
In 2022, the Council decided to reassess Mr X’s needs. In November 2022, it spoke to Mr X who agreed to attend a meeting in review of his needs without an advocate if one was not available. [The report does not say if he was a man with substantial difficulties and thus entitled to a Care Act advocate in certain circumstances or whether he was just used to being supported by one.]
In December 2022, the Council met with Mr X. His advocate was not available at this meeting. The conversation held in that meeting was not referenced or followed up on as a re-assessment – but he was assumed to know that it was in the context of a re-assessment because of the conversation in November.
In June 2023, Mr X’s reassessment of needs was completed by the Council. It considered:
- Mr X and his partner’s views,
- the mentoring service’s case notes,
- the view of medical professionals involved with Mr X (his GP and a local mental health service) and,
- existing reports and assessments.
The reassessment noted that:
- Mr X had direct payments for 21 hours a week but had not always used them for the intended purposes.
- His mental health conditions could affect his ability to maintain personal hygiene, wear appropriate clothing, take care of his home and access the community.
- Upon recent assessment by mental health services, he was not regarded as having a mental health need at the time.
- Another of Mr X’s conditions could impact his ability to feed himself and use the toilet, but he could ask his GP for referral to a specialist health service to manage those symptoms.
Overall, it concluded that Mr X did not have eligible needs and was therefore not entitled to social care support.
In July 2023, the Council informed Mr X of the outcome of this reassessment and gave him two months’ notice before it stopped his direct payments.
In August 2023, Mr X’s advocate complained to the Council. The Council then agreed to carry out a further reassessment of Mr X’s needs. During this time Mr X’s direct payments were reduced to 6 hours a week instead of being stopped altogether.
In September 2023, three meetings were held by the Council for Mr X’s reassessment of needs all with Mr X, his partner, his mentor, his advocate and his partner’s social worker present. Their views, alongside the views of the local NHS mental health service and the mentoring service, were taken into account by the assessor.
In November 2023, the Council changed its position and concluded that Mr X did have the following areas of eligibility for support:
- for support around accessing the community,
- safe mobilisation and use of his home,
- maintaining his home,
- going to the toilet and,
- managing nutrition.
In December 2023, Mr X’s advocate complained to the Ombudsman. They said that:
- neither they, nor Mr X knew about the ‘fact’ of the December 2022 reassessment;
- the November 2023 assessment was delayed;
- the reduction in hours was affecting Mr X’s wellbeing; and
- that the Council had taken too long responding to Mr X’s complaint.
In February 2024, the Council issued Mr X’s care and support budget and care plan following his November 2023 reassessment, after discussing its contents with Mr X’s advocate. The plan suggested that most of Mr X’s care needs could be best met by health, housing or other services, which it directed Mr X towards.
The plan allowed Mr X to either have direct payments for two hours a week or a commissioned service for the same amount of time, to help plan his week and provide social and emotional support.
In March 2024, the Council responded to Mr X’s complaint, thanking Mr X for agreeing to wait for its response until after it had completed the November 2023 reassessment, despite there being no record of that agreement, which was disputed in any event.
What was found
June 2023 reassessment
Mr X complained that the Council did not inform him or his advocate about the reassessment of needs which started in December 2022. In November 2022, the Council spoke to Mr X to inform him of the reassessment and ask whether he wanted his advocate present. Therefore, he was found to be aware of the suggested reassessment and no fault was found on behalf of the Council.
The Council began Mr X’s reassessment in December 2022 and did not complete it until June 2023. The reassessment took six months to complete, which was not in accordance with the care and support statutory guidance for completion within a reasonable and appropriate timescale. The delay amounted to fault on the part of the Council, causing Mr X avoidable frustration and uncertainty. However, the delay did not cause Mr X to lose out on support.
In the June 2023 reassessment, the Council considered the views of Mr X, his partner, information provided by professionals involved with him, as well as his stated needs and impact on his wellbeing. As the Council considered relevant information in coming to its decision, there was no fault in making the decision that Mr X did not have eligible needs at the time.
November 2023 reassessment
After a complaint from Mr X, the Council agreed to further reassess his needs. This process began in September 2023 and was completed two months later in November. This was deemed to be an acceptable timeframe deemed as acceptable. Therefore, no fault was found.
Despite Mr X being unhappy with his previous support package of 21 hours not being reinstated, in the Ombudsman’s view, the Council considered relevant information in completing the November 2023 reassessment. This decision was found to be in line with the Act. Therefore, there was no fault found in the Council’s assessment.
In February 2024 following Mr X’s reassessment, a care and support plan was issued. The plan, based on the November 2023 reassessment, signposted Mr X to services which could be used to meet his eligible needs. It did not provide the original 21 hours. [We are not sure but it may only have provided two funded hours from the council – see below.]
The Council was entitled to make this decision, as set out in the Care and Support Statutory Guidance, because a Council can meet a person’s needs by directing them to a suitable service. The plan gave Mr X the option to receive direct payments for two hours per week or have a commissioned service for the same amount of time. In the Ombudsman’s view this gave Mr X the option to decide how he might prefer to receive social care to plan his week and manage his emotions. Therefore, the Council was not at fault for this.
Complaint
The Council thanked Mr X for agreeing it could wait until after it had completed the November 2023 reassessment in its complaint response; it did not have a record of his agreement. The Ombudsman investigator was satisfied that Mr X did agree to this, due to the Council’s belief which it relied on for use in the complaint response and given that Mr X’s advocate did not complain until after the assessment had been completed. This did not amount to fault, although the Council should have kept a record of his agreement.
Agreed Action
Within a month of the date of the final decision, the Council need to take the following actions:
- To apologise to Mr X for the frustration he experienced due to its delays completing the June 2023 reassessment.
- To remind relevant staff that they must complete adult social care needs assessments within a reasonable and proportionate timescale.
The Council was to provide the Ombudsman with evidence of compliance with the agreed action.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
We think that the LGSCO investigator has not been specific enough for anyone to know whether the man was entitled to a Care Act Advocate for his re-assessment, on account of substantial difficulties in engaging with Care Act processes.
If the advocate was not just a person providing generic advocacy, but someone that the situation and the need for a reassessment compelled the consideration of advocacy, then the Care Act case law makes it clear that to proceed without one in place would invalidate the decision arising. (Haringey, 2015).
A person with ‘substantial difficulties’ may not understand that an advocate is there for their protection and the follow through on their legal rights. If one has substantial difficulties one may not understand the Care Act in any detail but have a view that one DOES have the capacity even without an advocate. Asking someone whether they’d just prefer to crack on with the essential reassessment that must precede revision of a care plan would be likely to mislead them as to the extent of their legal rights, we would suggest. The report is just too unclear to tell what sort of advocate he was aiming to involve.
Another criticism we would make of this report is that the LGSCO investigator did not seem to be bothered about the reduction in payments during the complaint being made. We appreciate it was not made until sometime after the cut, and that it may not have been clear whether the advocate was suggesting that the conclusions that he was no longer eligible were wrongly arrived at. But the statutory Guidance says in para 10.86 that a person cannot be left without care during a complaint, and this fits with the public law principles that unless a cut to a plan is made lawfully, the old plan remains in place.
We appreciate that the Ombudsman is entitled to say that just because he was found eligible at a given point does not mean he was wrongly found to have been ineligible at an earlier point. But if that was not borne out here, and what was different was just the way in which contending with his conditions was being seen over the two re-assessments, and given that the last one was in the context of a complaint being raised, we are surprised that the final outcome of hours was not considered for backdating.
Finally we are concerned that social services was steering the man to this and that (by way of assets and strengths, no doubt), as if that was all it took. We think that for someone with this profile of need it would be very likely that seeking help from other agencies such as the NHS, the GP, etc, would be deflected summarily with something like ‘We don’t offer that service here’ or ‘go back to social services’.
We think that the Guidance does support councils using community based assets to meet needs, wherever possible, but not unless the other agency is clearly going to step up and discharge its own functions towards that person adequately.
Where there is a gap as between what social services would like to provide and what is needed, which another agency could supply but won’t, the general position is that the duty is still with social services, unless the input in question is clearly something beyond the scope of the Care Act – something that is getting increasingly harder to contend for!
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Bristol City Council (23 015 115) report.
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