Decision Date: 13 November 2024
Summary
Croydon was alleged to have failed properly to assess a person’s needs, before delaying provision of a copy of the assessment document, for over a year. It acknowledged that it should have used a reasonable adjustments approach and would have to re-do its work.
What happened
Ms X had autism and ADHD and was referred to an NHS Community Mental Health Team (CMHT) for mental health difficulties.
In February 2022, Ms X requested an assessment of her needs (AoN) stating she was struggling with eating, drinking, making meals, personal hygiene and in leaving her home – including attending appointments. She said she was unable to cope with phone calls and often experienced sensory overload which led to episodes of shutting down or worse – meltdowns.
In May 2022, Croydon agreed to a face-to-face Care Act AoN for Ms X. In July, a social worker (SW) was allocated to conduct it and a [possibly privately sourced, rather than a Care Act] advocate began working with Ms X and communicated with Croydon on her behalf.
Croydon agreed to postpone the assessment until September 2022, to allow Ms X to focus on benefits applications, which were making her feel overwhelmed.
In September 2022, a SW arrived 10 minutes prior to the appointment time and together with Ms X’s advocate, waited for one hour, so that Ms X could prepare for the assessment. The SW suggested breaking the assessment in two stages but Ms X wanted to complete it that day.
Croydon’s records show the SW did then complete the assessment, but needed to write it up.
In October 2022, on the basis that Ms X appeared to be experiencing a mental health crisis, the SW asked NHS colleagues whether any support was in place for Ms X.
In February 2023, while the SW remained in post, Croydon noted Ms X’s assessment had not yet been written up.
The following month, when it was unclear if the SW was at work – the SW had a 6 week period away from work), the write-up remained outstanding.
In March 2023 the advocate complained that despite requests to the contrary, no copy of the assessment form had been pre-provided to Ms X; that the SW met Ms X only once; that the AoN process had not afforded Ms X an opportunity to explain her desired outcomes; not accounted for Ms X’s communication needs with the provision of Easy Read documents or posing focused, as opposed to open, questions; not asked Ms X about her sensory needs and not accounted for the masking of needs – all issues known to be associated with Autism.
Furthermore, the advocate noted Ms X was not asked about her experience of abuse; that it was unclear whether the SW understood about dealing with people with autism and that Ms X had still not received a copy of her assessment or a care and support plan.
In May 2023, the absence of any response to the complaint prompted the advocate to contact Croydon’s complaints team, which told the LGSCO it had no record of the complaint.
In June 2023 Croydon received a referral for an AoN for Ms X from the local CMHT who said Ms X was having difficulties with using services and facilities in the local community and secondly in accessing and engaging in work, education, volunteering and training. [The report does not say what became of that request.]
In September 2023 the SW finally wrote up Ms X’s assessment which noted that Ms X was able to travel independently but that her hyper-mobile joints caused issues; she was able to attend to her own personal care but that showering might take hours; she was able to cook independently and shop for herself but mostly ate microwave meals; she was able to manage her own medication; able to access the community and meet friends; able to manage her own money but was receiving help with applying for benefits as she was unable to work due to her mental ill-health; able to use her chart/plans to prompt her with day-to-day tasks; and able to independently contact emergency or other support services.
No outcomes personal to Ms X were recorded, nor her views on the ones in the eligibility regulations.
Croydon therefore found Ms X ineligible for a service under the Care Act as she was unable to show she could not achieve her desired outcomes in the requisite minimum of two domains.
The report references Croydon’s asserting that Ms X’s needs related ‘primarily from her mental health’ for which she was on the CMHT waiting list; it said [it is not clear from the report whether ‘it’ here was Croydon or the CMHT] it had provided advice around connecting to community and voluntary organisations.
In October 2023, Croydon’s response to Ms X’s complaint apologised for the delay in responding and stated that it had made reasonable adjustments to the AoN process; that Ms X chose the date and time of the AoN and had time to prepare for it on the day; that Ms X requested a single visit to complete the AoN and was provided with regular breaks throughout the process; that mental health support was in place and the social worker had made referrals to other services.
It then apologised for the delay in sending the AoN to Ms X, saying it would now send it to her – which the SW subsequently did, but without offering to discuss it any further with Ms X.
Ms X told the LGSCO that it was not true that mental health services were in place as she had never received any such support.
What was found
Croydon accepted it took far too long to provide Ms X with a copy of her assessment. Social worker absence aside, evidence indicated a period of around five to six months after the AoN was conducted, when there were no such absences: failing to write up the assessment within that time frame was fault.
The AoN itself was also found to be flawed, in failing to identify Ms X’s desired outcomes.
Further, the failure to complete the AoN within a reasonable timescale negated the supposed opportunity for Ms X to comment on a draft and for the correction of any inaccuracies.
Therefore, and in consideration of the length of time that had passed since the flawed AoN, the LGSCO determined that Croydon should reassess Ms X’s needs and in doing so, take account of any requested adjustments to enable Ms X’s full participation in the process.
Croydon then agreed, within four weeks, to provide a written apology to Ms X for the failure to provide her with a copy of her AoN within a reasonable timescale or to recognise the need to review the assessment with her and the associated distress caused.
It agreed to pay Ms X £300 for the distress she has been caused and to reassess Ms X’s needs, taking account of the requested adjustments set out in her complaint.
Furthermore, Croydon was required within eight weeks to identify actions necessary to ensure draft AoNs were provided within four weeks of the date the AoN was conducted and to ensure that when a member of staff was unavailable for an extended period, that another member of staff would be assigned to complete the statutory tasks.
Croydon was lastly required to provide the LGSCO with evidence of compliance of the above actions.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This report underlines messages from decided and well-established case law going back many years, of which Croydon seemed to be unaware.
Cases such as Merton (JF) emphasised that there is an irreducible minimum due process element to a lawful assessment, because the assessment regulations and s9 of the Act create a mandatory framework.
Anne Whyte QC, the judge in the Merton case said this:
“In my judgment, the Needs Assessment must specify what JF’s needs are and it must do so on a rational basis.
If the Assessment failed to assess the impact of JF’s needs for care and support upon the factors of wellbeing listed in section 1(2) of the Act, then it is an unlawful assessment.
Likewise, if it failed to assess the outcomes that JF’s wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes, it is unlawful.
If it fails to have regard to the matters specified in Regulation 3(2) as set out in paragraph 30 above, it is unlawful.
If the author failed to have regard to the wishes and preferences of the individual (expressed here to a degree by the Guardians, his parents), then it is unlawful.
If it is neither appropriate nor proportionate then it is unlawful.”
Here, we were most interested in the approach of Croydon to the question of Ms X’s inability to achieve. The Regulations for eligibility define ‘inability to achieve’ in a stretched way, allowing a person, for instance, who is prone to anxiety, or one who takes a very long time to do something to assert that they are in fact unable to achieve.
There is no suggestion in the legal framework that mental disorder – of whatever degree – excludes a person from the scope of the Care Act.
The fact that the CMHT is there to cope with severe and enduring mental illness does not mean that the Care Act obligations do not arise with regard to people with a lesser degree of mental ill-health.
Furthermore, the Care and Support Guidance, which must by law be acted under, such that departure from its contents must be justified by a very good reason – exhorts councils to read the criteria and apply the definition and the domains or outcomes of daily living in an inclusive way.
This is sensible, we would observe, because eligibility does not, on its own, imply that one has got UNMET needs – only that one has needs for care and support, by dint of the significance of the impact on one’s wellbeing from not being able to achieve across 2 or more domains of daily living. If one doesn’t have any children, or caring responsibilities for children, that particular domain will be irrelevant, leaving the test for ineligibility at the level of being found to be ABLE to achieve across 8 domains.
It is inconceivable that the Administrative Court would have upheld this attempt at Assessment, in our view. So, we are also concerned as to the investigator’s failure to consider the consequences of a year of an indefensible assessment being in place, which were obviously that no services were funded or arranged or received.
That means that the Council could well have been in breach of statutory duty, and that the woman would have had a claim for restitution – for unjust enrichment of the Council by dint of having saved money it would otherwise have been obliged to spend on her care, IF she had spent her own money or someone else had provided informal care without really shouldering the task voluntarily, had the Council been aware of that fact.
We were also interested in the approach of the ombudsman that any assessment should take no longer than 4 weeks to write up and finalise. The report does not say at what point the person should be being asked to vet what has been written for the correction of factual mistakes but it would be at the 2-3 week stage after the meeting, logically.
We think that apart from this helpful indication, this is a superficial report because it ignores the Guidance and case law on the legal position that the Care Act coverage incorporates people who have mental health problems. That aspect of Ms X’s experience was not commented upon. Nor does it mention the leading case on inadequate assessment approaches (Merton).
We also think that the relationship between the CMHT and the Council seems dysfunctionally unco-operative even if there is no longer any vision for a one-stop shop with cross-delegation of functions and an appreciation of the scope of the Care Act, as between the two organisations – and yet there is no comment about that, either.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Croydon (23 001 396) 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.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?
Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!