Summary: Mr X complained on behalf of Mrs Y and her disabled son, Mr Z, that the Council’s care and support plan for Mr Z did not provide him or his family with sufficient support. Mr X says this has placed a strain on Mrs Y and her family. We found fault by the Council. The Council has agreed to carry out a re-assessment of Mr Z’s care needs and a carer’s assessment for Mrs Y.

The complaint

1. Mr X complained on behalf of Mrs Y and her disabled son, Mr Z, that the Council’s care and support plan for Mr Z did not provide him or his family with sufficient support. Mr X says this has placed a strain on Mrs Y and her family in their role as carers and has resulted in Mrs Y becoming isolated and limited in her own development. Mr X would like the Council to provide day and night care to Mr Z.

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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 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)
3. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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. I discussed the complaint with Mr X and considered the information he provided.
6. I made enquiries to the Council and considered the information it provided.
7. Mr X and the Council have had the opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

Care Act 2014

8. Sections 9 and 10 of the Care Act 2014 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.
9. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). 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 what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must 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.
10. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Carer’s assessment

11. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.

Human Rights Act

12. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
13. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

Principles of good administrative practice

14. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
• Stating the criteria for decision making and giving reasons for decisions;
• Keeping proper and appropriate records, and
• Explaining clearly the rationale for decisions and recording them.

Background

15. Mr Z has a diagnosis of global developmental delay and cerebral palsy. He lives with his mother, Mrs Y, and his siblings, and requires extensive support and supervision with all daily living skills. Mrs Y provides care and support to Mr Z.
16. The Council carried out a Care Act assessment in 2015 and provided a care and support plan for Mr Z. The Council carried out periodic reviews of the care and support plan, including a review completed in June 2022. The plan specified Mr Z would attend a day centre from Monday to Friday, and would also attend a club for 18 to 25 year olds, once a week.

What happened

17. This chronology includes key events in this case and does not cover everything that happened.
18. In July 2023, the Council contacted Mrs Y’s family to say it had received a referral from Mr Z’s doctor. The Council said it had placed Mr Z on its allocation list for a social worker to be allocated to him.
19. In September 2023, Mr Z’s sister emailed the Council and asked for a social worker to be allocated as soon as possible, to review Mr Z’s needs.
20. In mid-September 2023, the Council replied. It said it had tried to contact the family to discuss any changes in Mr Z’s needs and said it had not yet allocated a social worker to his case.
21. A few days later, the Council received a call from Mr Z’s sister, who said Mr Z required a care needs review. On the same day, Mr X emailed his local MP; he said Mr Z only received limited support by attending the day centre and said Mrs Y was providing day and night support, despite having her own health issues. Mr X said the Council should reassess Mr Z’s needs as he required additional day and night support. Mr X asked the MP to contact the Council as Mr Z was still waiting for a care needs review, despite the referral made in June 2023 by Mr Z’s doctor. Mr X also said Mrs Y had not received a carer’s assessment for many years.
22. A few days later, the Council told Mr X it had allocated a care co-ordinator to review Mr Z’s case.

What happened next

23. The Council carried out a review of Mr Z’s care and support plan on 26 September 2023. It recorded that Mrs Y struggled to provide care for Mr Z due to her own health issues and Mr Z’s, at times, challenging behaviour. The Council noted Mrs Y’s request for 24-hour care and support and respite; however, it said Mr Z could not receive 24-hour care unless he was considered for residential care or supported living. Mrs Y told the Council she did not want Mr Z to move to residential care. The Council said it would provide additional support of one hour in the morning and one hour in the evening, from Monday to Friday, totalling 10 hours per week, as well as attendance on Saturdays at a local adult social care day service.
24. Mr X complained to the Council in October 2023, on behalf of Mrs Y and Mr Z, about the care package offered by the Council. He said the care package offering 10 hours per week was not sufficient as Mr Z requires assistance with all aspects of care, day and night. Mr X said Mrs Y has several health issues of her own and said it was important that the Council provided the right care package; he asked the Council to reassess Mr Z’s care needs again.
25. The Council provided its complaint response in November 2023. It said it had discussed the complaint, (that the additional 10 hours support per week was insufficient), and had discussed the family’s request for a minimum of an additional 50 hours per week with Mr X. The Council said it would discuss the family’s request at the next available funding panel meeting, due to be held the following week. The Council said it could not guarantee it would agree to the requested additional hours, but said the panel meeting was an opportunity to reach a compromise or an alternative solution.
26. The Council considered Mr Z’s case at a funding panel meeting in mid-November 2023. On the same day, following the meeting, the Council emailed Mr X to inform him of the outcome. It said the panel had agreed two options for the family. The first was the additional 10 hours per week as set out by the recent care and support plan review; the second was to place Mr Z in an adult placement or shared living scheme on a full-time basis if the family were unable to support Mr Z with the additional support offered.
27. Mr X discussed the outcome of the panel meeting with the Council in December 2023. The Council said it did not disagree with the family regarding Mr Z’s needs, but disagreed with their request for how those needs could be met. The Council advised Mr X he could escalate his complaint to the Ombudsman if he was not satisfied with the outcome.
28. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.

Analysis

29. Mr X complained the Council’s care and support plan did not provide Mr Z or his family with sufficient support. Mr X says a social worker told the family they thought the Council would provide 40 or 50 hours of care and support a week. Mr X said the family agreed to this, although really, they felt they needed more.
30. The Council says it declined the additional 50 hours per week, as requested by the family, because the care needs review in September 2023 considered this amount of additional support was not warranted. It says the family can consider an alternative arrangement, such as supported accommodation.
31. I have reviewed the Council’s records regarding the care and support plan review held in September 2023, and the panel hearing in November 2023. As part of the review, Mrs Y requested additional support for Mr Z. The Council carried out its review but declined the level of support requested.
32. The decision regarding the care and support plan is for the Council to make. However, we expect councils to be able to demonstrate the rationale for such decisions.
33. The Council says it does not take minutes at the panel meetings, and instead, the attendees refer to the panel report to discuss the request. It says the caseworker then informs the family by telephone or email of the outcome of the panel meeting. The Council also says any changes in agreement in the panel meeting is updated in the panel report.
34. I acknowledge the Council’s above explanation regarding its process. However, having reviewed the panel report and the Council’s case notes, the evidence provided does not give any detail of how the Council considered the family’s request for 50 hours support per week, or the reasons why the Council considered this level of support was not warranted.
35. As a result, the Council’s records do not demonstrate how the Council made its decision regarding the level of support offered, or the rationale for its decision not to provide the support requested by the family. This is not in line with our published principles of good administrative practice, and is fault causing uncertainty as to how the Council reached its decision.

Delay in carrying out the care and support review

36. Government Statutory Guidance regarding care and support says councils should review plans at least every 12 months. The Council carried out its review in September 2023; prior to this, the last review of Mr Z’s plan was carried out in June 2022.
37. The period between care and support plan reviews is therefore greater than the 12-month period stated by the statutory guidance. This delay in carrying out the review is fault causing distress to Mrs Y. This is evidenced by the contact made by the family in September 2023, asking the Council to allocate a social worker as soon as possible to review Mr Z’s care needs.

Carer’s assessment

38. The evidence shows the Council was aware in September 2023 that Mrs Y was struggling to cope with caring for Mr Z. In its response to my enquiries, the Council says it advised Mrs Y in January 2024 to visit a local organisation to have a ‘stand-alone carer’s assessment’.
39. As previously stated, where somebody provides or intends to provide care for another adult, and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. I acknowledge the Council says it advised Mrs Y in January 2024 to attend the local organisation to request an assessment. However, the Council was aware in September 2023 that Mrs Y was struggling to cope. The Council should have considered carrying out a carer’s assessment itself at that time, instead of waiting until January 2024 and simply directing Mrs Y to visit the local organisation.
40. The lack of carer’s assessment for Mrs Y by the Council is fault. Mr X says the impact to Mrs Y is that she has been struggling to manage her caring role; he says Mrs Y has become isolated and is not able to work or study. He says Mrs Y’s health is also deteriorating as a result of her caring role for Mr Z.

Human Rights Act

41. As stated at paragraph 13, the Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act. But we can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
42. We do not expect organisations to make explicit reference to human rights as part of their day-to-day decision making. But we expect it to be clear from all the evidence whether organisations have had ‘due regard’ for people’s rights.
43. The Council says it acknowledged the family dynamic in its support plan review document. It says the agreed additional support was to support Mr Z to remain, and be supported, in the family home.
44. The evidence indicates the Council had due regard for Mrs Y’s and Mr Z’s right to family life, namely, the right to have and maintain family relationships. The evidence indicates the Council considered the family’s views on residential care and their wish for Mr Z to remain at home. The Council provided an option for residential care but also provided an option to provide a care package to enable Mr Z to remain in the family home. I acknowledge Mr X says the family disagrees with the level of support offered, but this is separate to the matter of how the Council considered the family’s human rights. As a result, there is no evidence of fault regarding this aspect of the complaint.

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Agreed action

45. Having identified fault as set out above, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mrs Y and Mr Z for the fault identified. 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;
2. Carry out a further review of Mr Z’s care and support needs and to retain appropriate records to show the Council’s rationale for its decision;
3. Carry out a carer’s assessment for Mrs Y;
4. Make a symbolic payment of £300 to Mrs Y in recognition of the distress and uncertainty caused;
5. Remind staff of the Ombudsman’s principles of good administrative practice, specifically, the importance of retaining appropriate records to show the Council’s rationale for its decisions;
6. Remind staff of the statutory guidance which says councils should review care and support plans at least every 12 months, and the importance of adhering to this timeframe, and
7. Remind staff that where somebody provides or intends to provide care for another adult, and it appears the carer may have any needs for support, the Council must carry out a carer’s assessment.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman