Decision Date: 18 February 2025
Summary
A man complained about Leicester City Council’s assessment process for being too ‘binary’, oversimplifying his complex and fluctuating needs. He succeeded in getting the eligibility decision changed but was then pressured into going through a process called enablement before he could get a budget.
Furthermore, the lack of provision for needs for people with ADHD in the Council’s area had caused the complainant distress and frustration – but the LGSCO found no specific fault.
What happened
Mr X referred himself to Leicester City’s care and support system in April 2024, identifying his issues as general anxiety disorder (GAD) and attention hyperactivity deficit disorder (ADHD).
Mr X complained about the conduct of the social worker during the first visit in May, and the Council assigned a new social worker to him in June 2024.
The Council emailed Mr X to gather further information about his needs and the support required. He responded with detailed information.
In July 2024, the Council sent its draft assessment to Mr X.
The assessment said Mr X did not have any eligible care and support needs because he was able to achieve the outcomes specified as being the indicators of a reasonable quality of life, in the Care Act regulations.
However, it said he might well benefit from support from what it called its enablement team to help him promote goals relating to his skills, strengths and abilities.
In response to the Council, Mr X said his needs fluctuated to an extent which prevented his ability to achieve the outcomes.
The Council explained the assessment was a draft and could be amended to include further information. A telephone call between Mr X and the Council took place the following week to further the Council’s understanding of his needs.
Mr X complained to the Council about its failure to consider that his needs fluctuated and said it was wrong to include a binary choice of able/unable in the assessment documentation.
He also said the Council’s directory for care and support services did not cater for his needs. He said the service (Organisation A) which it recommended mainly dealt with families and children.
He also raised concerns about the council not issuing a care and support plan and a personal budget.
The Council sent Mr X an amended draft assessment, noting his needs relating to his GAD and ADHD.
It then decided Mr X did in fact have eligible care and support needs. But it still said that enablement support [not the team, this time, but this might just be the language used by the Ombudsman’s investigator, not the Council] would be helpful to meet his outcomes, as well as exploring whether Organisation A could in fact meet his needs.
Mr X was happy with the amendments. However, he asked whether there were any other local groups for him to attend. He said he wanted some further information about enablement and wanted to explore more formal social care options.
The Council responded and said Organisation A did work with adults, but that its old contract with the Council was mainly for work with children and families. It said it had contacted Organisation A to find out whether it could offer him appropriate support.
The Council further said its enablement service could offer support within the community for 12 weeks. [It is not clear from the report whether it meant its own inhouse team or its own support service or a commissioned outside service from Organisation A.] If at the end of the 12 weeks he still had unmet outcomes, it could consider long-term support such as direct payments/personal budget to meet some or all of his eligible care and support needs.
The Council sent a further email to Mr X which stated that Organisation A had agreed to offer him its full package. This included an assessment call, four online workshops and coaching, if necessary.
[The report says nothing about whether Mr X took up the option, and this is important, in our view, for reasons explained below in the Points.]
The Council responded to Mr X’s complaint in due course. It said that the able/unable options effectively allowed for all the nuance of how needs fluctuate over time to be considered, by the professional, before one or the other was selected. It said the assessment process could remain open as long as necessary to establish a complete overview of all needs.
Furthermore, the Council explained that it had not finalised Mr X’s assessment and its usual process was to develop a care and support plan once an assessment was finalised; and that the personal budget is incorporated when the care and support plan is issued. It explained that short-term support, such as enablement, does not generate a budget until the service user has finished accessing it. It will then assess whether enablement has helped the person gain/regain independence and if there are still unmet outcomes.
At the end of August 2024, the Council’s enablement team contacted Mr X and provided a comprehensive overview of its service. [The report does not provide any information of Mr X’s reaction or response to the Council’s enablement team].
What was found
The LGSCO noted that the Council ultimately considered Mr X’s needs and how they fluctuated and issued an amended assessment to reflect this. The assessment was detailed and considered everything the LGSCO expected it to in accordance with the Care Act 2014. Thus, no fault was found.
The Council detailed its whole process to Mr X, including care and support plans and personal budgets. The LGSCO was satisfied it answered all of Mr X’s questions in detail as it explained what its enablement team offered, why it was suitable, and that it would consider whether he had any unmet needs when he finished accessing it.
The LGSCO did not find fault, pointing to the Care Act 2014 which permits councils to recommend short-term interventions on the way to concluding whether someone has long-term care needs (and we would add, pausing an assessment even once one has started).
The LGSCO recognised that the Council contacted Organisation A when Mr X raised concerns about the lack of provision for adults with ADHD in Leicester. Organisation A agreed to provide its full package, including support for adults with ADHD. Given that the Council acted quickly to resolve the issue to ensure Mr X had access to suitable provision, the LGSCO did not find fault.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult who appears to be in need of care and support. An assessment must be provided to everyone regardless of their finances, or whether the council thinks the person has eligible needs.
Making an accurate appraisal of any ‘fluctuating needs’ for a person is a crucial element of an assessment as it has a direct impact on the eligibility determination. Consideration of fluctuating needs ensures that an assessment avoids being a ‘snapshot’ of a person’s care and support needs on the day of assessment.
Councils should therefore consider the person’s needs over a suitable period of time to gain an accurate picture of those needs to ensure the appropriate care and support plan is implemented.
The Guidance (which staff must act under, by dint of the duty to do so in the Act itself), specifically deals with fluctuating needs and a person with ADHD is a good example of someone who should indeed be able to get their needs considered at their worst as well as at their best.
Anxiety – if experienced to a significant degree when aiming to achieve the outcomes in the eligibility criteria – is an indicator of NOT being able to achieve; the definition of inability to achieve is a stretched and inclusive one in the eligibility regulations.
An assessment must also involve the individual – and where suitable, their carer or any other person they might want involved.
Assessments must be undertaken over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the process.
Where we part company with the LGSCO investigator for legal reasons, however, is this: Councils have a legal responsibility to provide a care and support plan, or a support plan for a carer under the Care Act 2014 for people who are found ELIGIBLE. The finding of eligibility IS the conclusion of the assessment: it says so in s13 Care Act!
The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and the possibility of care and support in the local area.
The plan must include a personal budget, which is essentially the money the council has worked out it will cost to arrange the necessary care and support for that person.
Pausing an assessment for prevention and reduction input (short term and community based options that might cost the council nothing) is of course lawful, but the legal point missed here in the report is the legality of any consequence for the customer, of refusing prevention and reduction offers, and what signals the end of the assessment stage.
When the man was first assessed he was found ineligible and steered towards options that might help him. That is Care Act compliant.
However, when he pointed out that the assessment had been too black and white and overlooked his fluctuating needs, so in effect, not properly discharged as an assessment, the Council accepted he was in fact correct, and he was then found eligible. This is exactly how a Conversation should in fact operate, if people know where they are in the Care Act journey!
The Care Act guidance says that a person is entitled to reject that which is offered by way of prevention and still press the Council on to finalising an assessment one way or the other with an eligibility decision, which then triggers care planning.
At that point for this particular customer, enablement input had already been offered and was offered again, through Organisation A, after it had accepted that Mr X was suited to its services – but seemingly without a finalised care plan in place.
Anything offered after an eligibility decision is a service response, to meet needs, not prevention and reduction, even if the provider is one and the same!
We do not know whether the man accepted it or rejected it, on the first or the subsequent occasion.
What we can say is that if he was offered a service via care planning and a care plan, with a budget as to its cost, and he had then rejected it, the Council would have been entitled to walk away.
But what they were doing was saying that he needed to complete the work with Organisation A before he could have a care plan – and in some parts of the report, even before his assessment could be finalised. This is using enablement as an extended assessment exercise, to our minds. But he had already been found eligible…!
Here it seems that the nature of the service being recommended ceased to be preventive and became a service response to eligible unmet need; it became a service under s18 and should have been written up in a care plan.
The man would then – rather than rejecting it or worrying about whether it could be good for adults as opposed to families and children, have been entitled to ask for a direct payment – and if the Council did not think that that was a good idea, it would have had to have explained why, in terms of why it would not be ‘appropriate’ for this form of input to be bought through a direct payment.
That could (potentially, at least if articulated properly) have been done by reference to the factor of how experienced the enablement support was supposed to BE, and really was, in practice for adults, or by reference to the dynamic being ‘different’ to services funded by a direct payment, given that the end of the service would have been further attention and assessment before the finalisation of the Council’s Care Act process, in its view – but at least that would have been more Care Act compliant.
Given that Mr X said that he had been caused distress and frustration and that the Council’s system caused delay in receiving support, and that there were no ADHD services in the area, we’ve acknowledge the sense in the Council’s approach but then analysed the matter from a somewhat more cynical standpoint, by dint of our own experience with other councils…
We think that the Council here may be using the concept of enablement to extend the period in which no duty is regarded as fully owed, and forcing prevention and reduction services on people as a bit of test before they can get anything more comprehensively care planned for, or funded long term. We are not sure that that is 100% legal, even if we can see the point of it and the good intentions behind the stance, if they have already been found eligible.
We think it is important for any Council with ambitions to re-order the linear process of the Care Act that it says that its enablement service, after a positive eligibility decision, is a phased approach to care planning and provision, and to inform the customer whether or not the whole 12 weeks is free or not.
This is our position because RE-ablement (we are not sure whether this is the same as Enablement, in concept!) is compulsorily free for up to 6 weeks; we doubt whether EN-ablement would have been regarded as free for the whole period and if our stance was followed, the charge for it should have been in the budget, which should have been in the care plan.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Leicester City Council (24 009 212) 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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