Devon County Council found not at fault in deciding that a person had no eligible needs

Decision date: 23rd October 2019

What happened

Miss X had a number of diagnosed medical conditions which she said affected her ability to carry out daily living tasks.

The Council previously provided Miss X with direct payments so she could arrange her own care flexibly, but this stopped in late 2016 after a Care Act assessment concluded that she no longer had eligible needs. Miss X complained to the Ombudsman about that decision.

The LGO decided in 2017 that there were no grounds to say there was fault.

In November 2017 Miss X’s occupational therapist (OT) made a referral to the Council requesting Miss X have her needs assessed again.

The Council said because of Miss X’s previous complaint that it wanted to make sure this assessment was completed correctly.

A social worker and her manager carried out a home visit, and noted that Miss X was “experiencing some difficulties in managing her personal care” and she “consented to a referral to the Community Rehab Team for a functional assessment of activities of daily living.” The social worker contacted the team to arrange a joint assessment visit with an OT.

Miss X agreed to the assessment, but only because she thought the social worker had been intending to seek medical input or consideration to better understand her conditions and to inform the overall assessment.

After four visits from an OT, it was concluded that Miss X did not have any eligible needs.

Miss X said the visits only involved conversations with the OT, without any active assessment of her ability to carry out household tasks. She said most of what the OT saw were low intensity tasks, such as making a pot of tea and that therefore the assessment did not go far enough.

The Council closed its assessment in late March 2018 and sent a copy to Miss X early the following month. It then took until June 2018 for Social Worker A to process a referral to a community group to support Miss X with social inclusion. By this point Miss X had already complained about the result of the assessment.

Miss X highlighted a letter she had seen which the OT sent to her GP in May 2018, summarising the visits. Specifically, it said “no specific functional assessments were completed.”

Miss X disputed the overall result of her Care Act assessment. She said the Council did not properly apply the national eligibility requirements correctly. The Council said it believed it carried out a person-centred assessment and incorporated the views of other professionals.

The Council acknowledged there was a delay in completing its assessment, caused by the wait for the OT’s findings. However, it says the result would not have changed even if it had made the decision sooner.

What was found

The LGO, firstly, was satisfied that the social worker was a suitable person to undertake the assessment. She met with Miss X at home, provided her own observations and arranged for an OT to carry out further observations too.

There is no timescale in which councils have to complete assessments, but it is important to complete them promptly as people may have unmet needs in the meantime. The LGO considered in this case that although there was a delay, it was not significant. Waiting for the OT’s findings was a reasonable reason for the delay. Therefore the Council was not at fault.

Lastly, the LGO did find fault with the Council’s use of the term ‘functional assessment’ to describe what the OT was going to do. The OT’s resulting letter to Miss X’s GP made clear she completed no specific functional assessments. Instead, what took place was really several periods of observation by another professional. Although the OT was a suitable person to complete the task, Miss X misunderstood what this would involve. She believed a medical professional was going to assess her needs in light of her medical conditions. That was not the case.

Although the LGO did find fault, no significant injustice was caused to Miss X. The Council should have explained better what it wanted to achieve from engaging the OT, especially as it was going to delay the result of the assessment itself. However, there was no injustice in involving the OT, as it actually made Miss X’s assessment more robust. That was to the benefit of both Miss X and the Council.

Although there was fault by the Council when it described observations by an occupational therapist as a ‘functional assessment’ when they were not, this did not cause any significant personal injustice.

Points for the public, service users, families, OTs and councils

Functional Assessment in UK social work terms might cover any of the following: motor / visual / auditory and process skills, and the effect on performance of every day activities of daily living. The purpose is to determine the person’s current functioning (involving identifying areas of strengths and weaknesses) in all aspects of daily life and developing recommendations to alleviate identified difficulties so that the person is as independent as possible.

For example:

  • fine motor skills in relation to handwriting and using a knife and fork
  • functional skills such as feeding, toileting and dressing
  • gross motor skills in relation to getting in and out of a chair, or car; sitting postur
  • organisation and planning
  • responses to sensory experiences and effect on performance of different tasks;

Whatever an assessor CALLS their observation or consideration of one’s abilities to achieve tasks, they do require co-operation, in legal terms, because the bottom line is that unless one SATISFIES an assessor of one’s inabilities to achieve, as defined, and on the separate question of significant impact, one doesn’t make it through the eligibility hurdle, for getting actual services.

A Care Act assessor (whether or not a qualified social worker) does not have to obtain the view of a GP or expert; experience is a source of competence.

But if an assessor feels unfamiliar with a condition and its impact, a GP or other person with specific knowledge might be asked. The council is not obliged to follow another professional’s view but must treat it as a highly relevant consideration.

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The full Local Government Ombudsman report of Devon County Council’s actions can be found here