Summary: Mr and Mrs X complained the Council failed to provide the care and financial support needed to meet their son Mr Y’s eligible care needs and delayed responding to their concerns and complaints. The Council was at fault. It delayed carrying out a needs assessment and producing a support plan, delayed providing an appropriate personal budget and direct payments and delayed making a referral to the Occupational Therapist. This meant their daughter Ms S was not appropriately paid for the support she provided, Mr Y had to fund some support from his own money and Mr and Mrs X were caused frustration and time and trouble. The Council has agreed to apologise to Mr and Mrs X and Ms S, follow up the Occupational Therapist referral and make payments to the family to remedy the injustice caused.

The complaint

1. Mr and Mrs X complain the Council failed to provide the care and financial support needed to meet their son Mr Y’s eligible care needs and delayed responding to their concerns and complaints. This caused significant strain and distress to the family and in particular to their daughter Ms S as Mr Y’s main carer.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have considered the information provide by Mr X and have discussed the complaint with him. I have considered the Council’s response to my enquiries and the relevant law and guidance. I have also discussed the complaint with Ms S.
5. I gave Mr X and Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

6. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved
7. The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
8. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the care and support plan.
9. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
10. Under the Care and Support (Direct Payments) Regulations 2014 direct payments should not be used to pay for care from a close family member living in the same household, except where the council determine this is necessary to meet the person’s needs.
11. Continuing Health Care (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. The assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making.
12. The DST makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care, which is set at a weekly rate.

The Council’s complaints policy

13. The Council’s adult social care complaints policy sets out it will acknowledge a complaint within three working days. It says the Council may contact the complainant to discuss their concerns and agree a plan of investigation. It says ‘you should receive a response to your complaint within 20 working days from when we receive your complaint’. It says ‘for more complex complaints we may need more time to investigate and respond to you. If this is the case, we will keep you informed’.

Background

14. Mr Y has Downs syndrome and autism. He lived in a residential setting, returning to stay with his family one or two nights a week. He received 105 hours of care per week at the setting plus shared overnight support. Over time Mr Y became increasingly anxious and reluctant to return to the residential setting. He eventually refused to return. For an extended period, the family worked with the setting to try and facilitate his return. However, Mr Y would not return and in February 2019, the Council ended the placement. Mr Y has continued to live at home. Mr Y will not accept care and support from Mr and Mrs X. He will only accept support from his sister Ms S.

What happened

15. In early February 2019 Mr X emailed the Council. He said he had repeatedly asked for a meeting with the Council to discuss what would happen if Mr Y refused to return to the placement by the agreed notice period which was the following week. He was concerned Mr Y’s needs had not been reviewed. The Council responded asking that he let it know if Mr Y did not return to the placement by the agreed date. It said it would then explore alternative options but this would need to take place following a continued health care assessment.
16. Mr Y refused to return to the residential setting. The Council agreed to meet with the family two days later.
17. A Council social worker met with Mr and Mrs X and Ms S. They discussed the option of Ms S living with Mr Y, as his main carer, in a separate property or the current property being extended to accommodate Mr Y more appropriately. The social worker advised this could be discussed with an Occupational Therapist (OT) in terms of a potential disabled facilities grant (DFG - a Council funded grant for property adaptations). Ms S requested the Council provide direct payments, as a special circumstance, so she could be paid as Mr Y’s full time carer. Ms S was also looking to employ additional staff to support Mr Y so she could have a break at times and requested funding for 15 hours support be approved immediately to enable her to do this. The social worker advised the request would need discussing with senior management. The social worker also advised a decision support tool needed completing to ascertain if Mr Y had primary health needs.
18. The Council held a decision support tool meeting in mid-March 2019. At the meeting Ms S told the Council they had started paying two staff who had previously worked with Mr Y at the residential setting, so she could have a break from her caring role. The NHS representative did not recommend CHC funding but that he would get funded nursing care if Mr Y was in a residential home. The Council disagreed. Its view was that Mr Y should receive CHC funding. It disputed this with the NHS.
19. In March 2019 the Council completed an assessment of Mr Y’s needs. It noted Mr Y needed support with all aspects of personal care, meals and drink preparation, supervision of nutritional intake, skin care, continence management, medication management, domestic tasks and support to access the community. It noted the family were requesting 15 hours per week to support Ms S in her role as Mr Y’s main carer. Ms S had privately recruited two staff. She wanted to continue with her own job but was unable to do so with the demands of her caring role. The Council approved the assessment in early April 2019 for direct payments to cover 15 hours support. It sent Mr X a direct payment form to sign at the end of April and said the payments would start as soon as he returned the form. It also referred Mr Y to a company to support him with managing the direct payments.
20. Mr X returned the form to the Council in early May. He told the Council Ms S was continuing to provide 24/7 support to Mr Y and they needed agreement for her to be employed as his personal assistant. They had employed two staff for 15 hours but wanted the 105 hours which the Council had funded for the residential placement until February 2019. He asked the Council to backdate the 15 hours to the end of February, when he first employed the personal assistants.
21. In May 2019, the Council moved Mr Y’s case to its new specialist learning disability and autism team. Mr Y contacted the Council at the end of May asking for a social worker to be allocated and for a support plan with paid hours for Ms S who had now left her job as she could not manage this and care for Mr Y. He also phoned the Council as the direct payments had not started. The Council noted the payments had not started as it needed to complete a financial assessment. The Council allocated a social worker to Mr Y’s case.
22. In June 2019, the social worker met with the family who were desperate for more paid personal assistant hours and for Ms S be paid as Mr Y’s personal assistant. The social worker reviewed Mr Y’s assessment and the Council agreed to pay Ms S due to the exceptional circumstances. In early July the Council completed a financial assessment. Following this the Council told Mr X he would receive 15 hours of direct payments backdated to early May 2019, when he signed the direct payment agreement. Mr X requested the direct payment be backdated to February 2019.
23. In July 2019 Mr X submitted a complaint to the Council. He requested 105 hours of support for Mr Y as previously agreed and provided in the residential setting. He complained the funds were not in the direct payment account, Ms S had not been paid to support Mr Y even though she had to give up work. A Council officer acknowledged the complaint, two weeks after the Council received it, and agreed to respond by late August. In July 2019 Mr X started receiving direct payments for 15 hours care a week.
24. In late July 2019 the social worker sent Mr X a draft support plan. This was the first support plan sent to Mr X. Mr X responded and noted they had not had a formal care plan meeting and requested 15 hours one to one care per day for Mr Y (105 hours a week). The social worker visited Mr X in late August 2019. Mr X explained the difficulties in living with Mr Y. Mr and Mrs X had to avoid crossing his path so as not to upset him. Ms S had to introduce new carers slowly in a planned way or Mr Y would not accept them. Mr X agreed to provide the social worker with some information about what the support hours would be used for.
25. Mr X’s complaint was passed to a manager to consider who offered to visit Mr X to discuss the complaint. They spoke with Mr X on the telephone in late August 2019. Following this Mr X emailed the manager providing information about the hours of support required. He also requested further discussion about the potential property adaptations.
26. In September 2019, the manager asked the social worker to prepare a support plan for 40 hours a week support to Mr Y backdated to February 2019. They wrote to Mr X, in response to his complaint, setting out the Council agreed 40 hours of support which would be reviewed to establish what other support was required. They agreed Ms S could be paid as a personal assistant and they would look into backdating this. Following this they offered to meet with Mr X with another manager to ensure his concerns were addressed.
27. In late September 2019 the Council continued to query whether Mr Y should receive CHC funding. Following further correspondence with the NHS it agreed, in December 2019, that Mr Y was not eligible at this time.
28. Mr X contacted the Council in early October. He had still not met with the manager to discuss the complaint. He had offered some dates but not received a response. The manager explained they were changing roles and another manager would progress the meeting.
29. In October 2019, the social worker sent Mr X a support plan. Mr X responded that he had still not met with a manager and the support plan remained inaccurate as it did not cover all the hours required. The social worker changed roles at this time.
30. In November 2019 Mr X referred his complaint to the Ombudsman.
31. In January 2020 Mr X contacted the learning disability and autism team. He said the situation was increasingly fraught and needed resolving. The proposed meeting with a manager had not happened.
32. Following this a manager spoke with Ms S. The Council agreed an increase of 16 hours support for Mr Y to 56 hours a week, from February 2020, to meet Mr Y’s eligible needs and reduce the risk of carer breakdown. They noted Mr Y received 40 hours of direct payments per week but Ms S did not receive all the payments as two other carers received 8 hours per week each.
33. Ms S sought agreement for a further 24 hours support from mid-February 2020 so they could employ an additional carer, taking the total to 80 hours per week. The Council agreed to this and produced an updated assessment and support plan. The manager also referred Mr Y to an OT to progress a potential DFG.

Findings

34. The Council failed to meet with Mr and Mrs X prior to the termination of the care placement. There was therefore no opportunity to plan or agree any contingency should Mr Y not return to the residential setting. Although the Council may have believed Mr Y would return to the residential setting, the failure to consider any form of contingency planning is fault.
35. The Council delayed reassessing Mr Y’s needs following the termination of the placement at the residential setting. This delay is fault. This appears to be because it was waiting for the outcome of an assessment for CHC funding. It was appropriate for the Council to consider whether Mr Y was eligible for CHC funding but this should not have delayed the assessment or support planning. Mr Y had care and support needs which the Council was aware of, as it had previously funded 105 hours of 1:1 care at the residential setting.
36. When it completed an assessment in April 2019 the Council failed to consider Mr and Mrs X’s request for Ms S to be paid as a carer due to the exceptional circumstances. This is fault. Ms S acted as Mr Y’s main carer placing her under significant strain and she had to give up work. It also failed to consider Mr X’s request to backdate the payment for 15 hours to February 2019, which was when they first employed carers to support Mr Y, helping relieve pressure on Ms S as carer. This is fault.
37. It is for the Council, not the Ombudsman, to decide how much support an individual requires to meet their eligible needs. Mr X requested 105 hours as this was previously provided at the residential setting. The Council was not required to fund 105 hours, just because this was funded previously. The Council was required to ensure Mr Y received sufficient budget to fund the care and support necessary to meet the needs identified in the assessment and set out in the support plan. The Council delayed producing a care and support plan setting out how Mr Y’s needs would be met based on his personal budget. It failed to clearly identify what support Mr Y needed to meet his assessed eligible needs. This is fault.
38. Since February 2020 the Council has agreed to fund 80 hours per week and is satisfied this is sufficient to meet Mr Y’s eligible needs. There is no fault in the way the Council reached the view Mr Y’s needs can be met with 80 hours of support. However, the delay in properly considering this is fault. On the balance of probabilities, had the Council acted without fault, it is likely it would have decided 80 hours was the appropriate amount of support required to meet Mr Y’s needs from February 2019 onwards.
39. In April 2019, the Council agreed to start providing direct payments for Mr Y. However, the direct payments were not paid into his account until July 2019. The Council required a financial assessment before it would start the direct payments. It failed to ensure this was done in a timely manner. This delay was fault.
40. The Council failed to respond to Mr X’s complaint in line with the timescales set out in its complaints’ process. This is fault. It also agreed to arrange a meeting with senior managers to resolve outstanding issues and this did not happen. This caused Mr X additional frustration.
41. The Council did not make a referral to the OT to consider Mr and Mrs X’s request for Council funded adaptations until January 2020. Mr X first asked about adaptations in February 2019. He raised this again in August 2019. This delay is fault. The OT has yet to visit. I cannot say what the outcome of the visit may be but the delay has caused Mr and Mrs X frustration.

Injustice

42. Mr Y has continued to have his needs for care and support met by Ms S. He has not missed out on care and support as a result of the Council’s faults.
43. Since February 2019 Ms S has acted as Mr Y’s main carer, providing care and support to meet his eligible needs. The Council agreed to backdate 40 hours of support to February 2019. Mr X says Ms S received a back payment for 40 hours a week between February and April 2019. However, during this time, the family also employed two carers for a total of 15 hours a week each to ensure Ms S received a break. Mr X says between February and April 2019 Mr Y paid for the two carers to provide 15 hours of support per week from his own funds (amounting to 90 hours of care int total), after which they were paid for 16 hours a week from the 40 hours of care funded by the Council.
44. Between May 2019 and the end of January 2020, this meant Ms S only received payment for 24 hours and not for the 40 hours of support she provided to Mr Y each week.
45. Mr and Mrs X were caused time and trouble and frustration in having to repeatedly contact the Council to have their concerns addressed.

Agreed action

46. Within one month of the final decision on this complaint the Council has agreed to apologise to Mr and Mrs X and Ms S for the frustration and distress caused to them by the Council’s faults.
47. Within one month of the final decision on this complaint the Council has agreed to:
• refund to Mr Y the cost of the paid support he self-funded between February and April 2019 (this totalled 90 hours of support).
• backdate the 56 hours a week of direct payments to 1 May 2019 to pay Ms S the additional payments she missed out on due to the Council’s faults and to acknowledge the strain caused to her.
• pay Mr and Mrs X £250 to acknowledge the frustration and time and trouble they were put to.
48. Within one month of the final decision the Council has agreed to follow up the referral to the OT and ensure this takes place within the next three months.
49. Within three months of the final decision the Council has agreed to remind staff to ensure needs assessments are not delayed and care needs continue to be met while awaiting CHC decisions.

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Final decision

50. I have completed my investigation. The Council was at fault. The Council has agreed to remedy the injustice this caused.

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Investigator's decision on behalf of the Ombudsman