Summary: Miss P complains on behalf of her son. They complain the Council took eight months to agree to fund a suitable supported living placement for him. The Council’s only consideration was cost and its offers were not person centred. We uphold the complaint because of some fault in the care and support plan review process. But this led to limited injustice due to actions the Council later took. We do not agree that the Council’s only consideration was cost.

The complaint

1. Miss P complains on behalf of her son (Mr R). They complain the Council took eight months to agree to fund a suitable supported living placement for Mr R. This severely delayed his discharge from hospital. The Council agreed to a placement but then withdrew the offer, which was upsetting for them. The Council’s only consideration was cost and its offers were not person centred.
2. Miss P says Mr R spent eight months longer than necessary in a secure hospital unit which restricted his freedom and ability to live a normal life. There was also poor communication which caused them frustration and distress. She wants the Council to acknowledge its failings and improve its service.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss P;
• made enquiries of the Council and considered its response;
• spoken to Miss P;
• sent my draft decision to Miss P and the Council and considered the responses I received.

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What I found

Legal and administrative background

Assessment

6. Sections 9 and 10 of the Care Act 2014 (supported by the Care and Support Statutory Guidance) require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. 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. Councils must carry out assessments 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 assessment.
8. The Care Act lists the following as social care needs:

• managing and maintaining nutrition;
• maintaining personal hygiene;
• managing toilet needs;
• being appropriately clothed;
• being able to make use of the home safely;
• maintaining a habitable home environment;
• developing and maintaining family or other personal relationships;
• accessing and engaging in work, training, education or volunteering;
• making use of necessary facilities or services in the local community, including public transport and recreational facilities or services; and
• carrying out any caring responsibilities the adult has for a child.

Reviews of care and support plans

9. The Guidance says local authorities should conduct a review of a care and support plan at least every 12 months. The review should consider:

• have circumstances or needs changed?
• what is working in the plan, what is not working and what might need to change?
• have the outcomes identified in the plan been achieved?
• does the person have new outcomes they want to meet?
• could improvements be made to achieve better outcomes?
• are there changes in the person’s community support networks which might impact on the plan?
• is the person, carer or advocate satisfied with the plan?

Health needs

10. The Care Act prohibits councils from meeting “health needs” as part of a package of social care, unless they are incidental or ancillary to an eligible social care need. (Section 22 of the 2014 Care Act)

What happened

11. Mr R has a range of mental ill-health and cognitive disorders. He was living in supported living accommodation, but he, Miss P and the Council were seeking a move, as they felt that placement was no longer suitable for Mr R. He had been receiving waking night support in this placement.
12. The Council has sent the Ombudsman a list of care providers the Council approached. None of these were suitable. Miss P says these placements were unsuitable for reasons such as location, size or having no overnight care.
13. At the beginning of July 2023 Mr R was involved in an incident with another person and subsequently admitted for assessment to a secure mental health unit under Section 2 of the Mental Health Act.
14. Around a week after Mr R entered the hospital the Council contacted Miss P. They agreed to start a fresh search for a placement when Mr R was ready to leave hospital. The Council’s team that looks for suitable placements (its brokerage team) closed Mr R’s case. It noted it would reopen the case when social care had completed a new Care Act assessment, as it had not completed one for two years.
15. A week later the Council’s social care team made a fresh referral to its brokerage team. Brokerage found some providers whose details they sent to the social care team. Other providers had no availability. By the end of July the Council’s brokerage team advised it had contacted all providers local to Miss P (as she and Mr R wanted a placement near to her home) and was widening its search. A social care officer informed Miss P.
16. The Council’s social worker also met Mr R to review his care and support plan. This noted Mr R’s history of needs. It noted his previous placement had included overnight care. The social worker decided the Council needed to revise/amend Mr R’s care plan. The new assessment noted the support Mr R had received at the hospital unit. The support plan noted Mr R had eligible needs around some domestic tasks, accessing the community, prompting for personal care needs and organising and initiating some tasks. These did not include night-time support.
17. Towards the end of July social workers carried out a mental capacity assessment and made a best interests decision (BID) about Mr R’s care. The BID record said:
• Mr R did not have mental capacity to understand the reason he had to move from his previous accommodation;
• Mr R would ideally like to live within walking distance from Miss P’s home;
• a specialist doctor said Mr R would need a placement with less residents, with a provider who understood the needs of residents with mental health and Mr R’s other conditions;
• after his detention under the Mental Health Act lapsed, Mr R would be informally staying at the secure unit while new accommodation was sought.
18. At the beginning of August Miss P visited a possible placement. Staff from the hospital unit who also visited the placement noted concerns about its size and number and type of other residents. Around two weeks later Miss P emailed the Council rejecting the placement.
19. During August the Council was in touch with other providers. Miss P declined the ones that had availability for various reasons. She says professionals at the hospital unit also had concerns. Miss P’s stated reason for declining one of the possible providers was it had no night-time support.
20. Around mid-September Miss P forwarded the Council details of a placement she had found. She visited the care provider and emailed the Council and NHS staff advising it “ticks all the boxes”. She asked the various recipients to liaise about funding and arrangements to visit the property.
21. Preparations for this placement continued over the next few weeks. There were initially some problems in the care provider meeting Mr R. A Council manager advised Miss P and others they had stressed to the provider the urgency of the need to complete the process, so Mr R could move. Around the end of October the provider advised it could not accommodate Mr R until December.
22. Mr R visited the placement at the beginning of November. After, the Council wrote to the care provider asking it for a detailed cost breakdown. It set out what it needed to see about how the provider was going to use the funding. It noted the matter remained "quite an urgent matter".
23. The care provider provided its quote for care around two weeks later.
24. The proposed placement was in a self-contained flat, with the care provider providing Mr R with care and support from there. Around this time, Mr R’s social worker emailed the accommodation’s landlord asking them to provide Miss P with the tenancy agreement, so she could “review them and get them signed”.
25. Around this time, an internal email from the Council’s brokerage team noted the proposed care provider was not on the Council’s approved provider list. And that its costs were high. The sender asked social care for a new referral so it could “go back out to providers to see if we can get some other interest”.
26. The Council informed Miss P:
• the care provider had costed for providing sleep in staff to support Mr R through the night, which the Council had not assessed as a need he had;
• the care provider had costed for psychological/emotional support. The Council could not fund this support, as it was classed as healthcare, so funded by the NHS, not councils;
• it needed to consider broadening the search for a placement to a wider geographic area, as the available options it had come back with had been outside her immediate area.
27. Miss P says at the beginning of December a move date to the care provider was agreed. The Council’s records do not have any record of this agreement.
28. In mid-December Miss P complained. The Council provided its complaint response in January 2024. This advised:
• the care provider was “overprovisioning” support by proposing waking night support;
• the Council was not allowed to provide healthcare services and this included some of what the care provider was proposing;
• it apologised its social worker had presumed a placement had been agreed (see paragraph 24). There was nothing on its system to suggest the Council had agreed this. It accepted its officers should have challenged this assumption during clinical review meetings.
29. In considering the care provider’s proposals, the Council asked the hospital to send over some nurse observation charts to check Mr R’s night-time care needs. Its view was the was no evidence in the charts to support a view Mr R needed waking night-time support.
30. In the second week of January the Council proposed some costings to the care provider. It suggested night support for Mr R via a technological solution. The care provider’s response was that the Council’s proposals were not acceptable and it pulled out of the proposed placement.
31. The following day the Council informed Miss P and Mr R. It started to update the referral so that it could seek a different provider. The Council also noted the care provider had come back to say it would like to engage in further discussions, so it would be scheduling a meeting.
32. The Council decided it needed a new mental capacity assessment around Mr R’s caring options.
33. The Council provided a further response to Miss P’s complaint:
• there was nothing on its social care system to suggest it had agreed funding for the new tenancy or care provider. It had not confirmed or worked towards a discharge date of December. But the team had learnt that it should not have let the matter progress so far;
• the issue with the placement was not about cost. Rather it was about only paying for eligible needs.
34. In mid-February, after further negotiations, the Council reached agreement with the care provider over a package of care that it would fund. The Council says the problem over meeting the healthcare needs was overcome by the hospital unit committing to continuing its involvement with Mr R after he left its care.
35. Mr R moved to his flat around a month later.
36. Around two months later, following an NHS Continuing Healthcare assessment, the local NHS board found Mr R did not have a primary health need and so was not eligible for NHS Continuing Healthcare funding.

Analysis

37. The Council was proactive from before Mr R was ready for discharge in seeking a new placement. It continued to experience problems it had earlier found in finding a placement for Mr R – due to the providers with availability in Miss P’s immediate area not being able to meet Mr R’s specific needs.
38. In September Miss P found a care provider and passed its details onto Council officers. It took nearly six months from then before Mr R moved to the placement. That was certainly a long time. But:
• some of the initial delay was due to the care provider;
• the care provider then said it could not accommodate Mr R until December.
39. The Council engaged with this provider in seeking to find a placement for Mr R. But it identified the following issues relating to the care provider’s proposed package of care.

Mr R’s night-time care needs

40. The care provider’s costs included night-time waking support for Mr R. The Council had reviewed Mr R’s eligible care and support needs while he was still being detained in hospital. The resulting care and support plan did not identify any night-time care needs. The merits of that decision are not something the Ombudsman can determine.
41. But Miss P notes Mr R’s past placement did provide 24 hour waking support. The Council’s assessment confirms this. Waking support would also have been available in the hospital. Given what a review is meant to consider (see paragraph 9), I would have expected so see some acknowledgment of Mr R not needing night-time support, as this was a change, with some exploration of the reasons for this. My decision is to not have that analysis was fault.
42. After the Council’s review of Mr R’s care and support plan, the Council was seeking a placement for Mr R. Miss P’s reasons for rejecting one of the placements was that it did not provide night support. My decision is the Council should have raised then that, according to Mr R’s updated care and support plan, that was not something the Council had identified as an eligible need. And to not do so was fault.
43. However, the injustice from this is limited to some unnecessary frustration. This is because, when the Council was challenged about whether Mr R needed night support, it sought to better understand Mr R’s night-time care needs. It asked the hospital to provide logs. These did not demonstrate any need for night-time support. And its January 2024 proposal suggested night-time support via a technological solution. So the Council’s response was appropriate when the issue was later raised.

Funding for identified healthcare needs

44. The Council noted the care provider was proposing providing Mr R with psychological and emotional support. The Council’s view is these were healthcare needs. It stated the Care Act does not allow local authorities to provide healthcare needs. This led to a period of seeking the NHS bodies to assess Mr R for healthcare funding. This delayed the process, with the hospital unit agreeing to continue its involvement with Mr R, after he left its care.
45. I do not find fault with the Council’s view on this issue. The Care Act is clear funding for such needs are for NHS bodies, not councils. So the decisions on funding for these needs are outside the scope of this investigation.

Miss P says the Council’s only concern was cost

46. Given the above analysis, I do not agree that the Council’s only consideration was cost. The Council did note the care provider’s fees were higher than it would normally meet. But that did not stop it seeking to reach an agreement with the provider over the care it had assessed Mr R as needing. I cannot question the merits of its decisions about what it would not fund.
47. At points during this period, the Council did, correctly, seek to resume searching for other options, as it seemed the gap between what it would fund and the care provider’s view could not be resolved.
48. My decision is that, while it undoubtedly took longer than it should have to find a new provider, this was not due to any significant fault by the Council. Part of the delay was due to the care provider’s availability. And the rest was due to protracted negotiations with the provider about its proposed package of care and why they did not meet its assessment’s outcome regarding Mr R’s eligible needs.

Other matters

49. I find fault with a social worker asking a landlord to send Mr R a tenancy agreement for him to sign. I can see no mention of an agreed start date in the Council’s records, so am unsure how this process started. But the social worker should have challenged this, or sought clarification.
50. The Council’s records note Mr R had not had his care and support plan reviewed for two years. That period sits outside the time this complaint has considered, but to have not carried out an annual review was fault.

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Agreed action

51. I recommended that, within a month of my final decision, the Council should write to Miss P and Mr R apologising for the faults I have identified.
52. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
53. The Council has agreed to my recommendation. It should provide us with evidence it has complied with the above actions.

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Final decision

54. I uphold the complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman