Summary: Mr X complains the Council has failed to meet his son’s, Mr P’s, needs for care and support. The Council accepts it took too long to reassess his needs, and it changed his personal budget without giving four weeks’ notice. It apologised for the delay but not the lack of notice. The Council needs to apologise for the lack of notice and make a symbolic payment to Mr X for the distress caused.

The complaint

1. The complainant, Mr X, complains the Council has failed to meet his son’s needs for care and support.

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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. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

5. I have investigated events since 2022. I have not investigated event before 2022 because of the restriction in paragraph 4 above. The Council respond to a complaint from Mr X in October 2021 and told him he could complain to the Ombudsman. Mr X did not do that but instead commissioned a solicitor to write to the Council on his behalf. The Solicitor wrote to the Council in December 2021, after which there were further exchanges of correspondence. Mr X complained to the Ombudsman in November 2023, after the Council responded to a further complaint of his in October 2023. I have exercised the Ombudsman’s discretion to investigate events from 2022. However, I am satisfied that the complaint about events before 2022 are a late complaint and that it had been open to Mr X to complain to the Ombudsman within 12 months of those events, but he chose not to and to purse his concerns via a solicitor.

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How I considered this complaint

6. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

7. 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.
8. 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.
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.

What happened

11. Mr X’s son, Mr P, has a severe learning disability and autism. He lives with his parents who are his main carers. The Court of Protection has appointed Mr X as his deputy for health and welfare, and finances.
12. The Council’s records evidence longstanding disputes between Mr X and the Council over the support provided for Mr P and the use of his son’s direct payments.
13. Mr P’s 2020 care and support plan identified unmet needs relating to:
• Washing, bathing and laundry, including the need for two carers to help with personal care
• Being safe around the home, including the need for support all the time and two carers to encourage, prompt and help him stand if he refused to get up
• Forming and maintaining relationships, including the need for help developing peer and social relationships
• Keeping the home clean ad safe, including the need for support and prompting with light domestic tasks
• Using the toilet, including the need for support from two people to change incontinence pads
• Eating and drinking, including the need for support buying, preparing and consuming food and drink
• Accessing the local community, including the need for support from two people when out in the community
14. Mr P’s personal budget was £619.89 a week. It provided for:
• Music sessions - £40 a week
• Communication sessions (private speech therapy) - £40.40 a week
• Horse grooming - £70 a week
• Leicester Tigers ticket - £7.65 a week
• Two days at a day service, including two 1:1 hours a day - £286.60 a week
• Admission costs for activities (e.g. bowling or the cinema) - £31.86 a week
• Six weeks of respite in the form of a family holiday (£7,455 a year) - £143.38 a week
15. In February 2022 the Council assigned a social worker to reassess Mr P and review the use of his direct payments.
16. On 11 April, Mr X’s private advocate contacted the Council. Following further contact, on 4 May the Council told the advocate it was awaiting advice from its solicitor on the next steps. The Council’s solicitor wrote to Mr X’s solicitor asking for confirmation of how the advocate would be funded. It appears the Council wanted confirmation that its funds would not be used to pay for the advocate, as Mr P was entitled to a Care Act advocate via an arrangement it had with another advocacy service.
17. On 18 July the Council decided to arrange a meeting with Mr P, the private advocate and his family to review his needs.
18. On 27 July the private advocate told the Council Mr X:
• mistrusted the Council and was anxious about the review;
• wanted to know if they could use Mr P’s direct payments to pay for meals.
19. The Council said the review would be done by someone new and would not revisit old discussions. It agreed to answer the question about meals at the review meeting. It invited Mr X to submit other questions in advance, so answers could be provided at the meeting. It said it would need Mr X’s consent to gather information from Mr P’s day service, his private speech therapist and health professionals.
20. On 15 August the Council told the private advocate Mr P’s direct payments could not be used to pay for meals. The next day the advocate sent the Council a list of questions from Mr X.
21. On 18 August the Council responded to the questions via e-mail. It provided a link to its guidance for carers managing direct payments on how they should be used. It said:
• Direct payments could not be used to buy food. Nor could they be used to pay for service which were the NHS’s responsibility (i.e. communications sessions).
• There was flexibility over the frequency of activities within Mr P’s personal budget.
• It would reassess the respite holidays at the review.
• All receipts had to be kept as expenditure needed to be accounted for to the Council. The frequency of monitoring could be variable.
• The 2022 financial year started on 11 April. Following the review, services and provisions would be for the year. However, a review could be requested before the end of the year.
22. They arranged to do the review on 19 September, this had to be rearranged because it was the day of Queen Elizabth II’s funeral.
23. They rearranged the review for 13 October. Shortly before the meeting, the Council asked for Mr P’s bank statements since 17 April 2021. The Council then visited Mr P with his family and the private advocate. According to the Council’s record of the visit:
• Mrs X said they declined a bathing assessment because they felt it would be too intrusive for someone to watch Mr P being bathed;
• Mr X refused permission for the Council to contact Mr P’s GP for confirmation of the diagnosis of neurocognitive decline;
• The Council confirmed that direct payments could not be used to meet health needs (i.e. communication sessions);
• It said it needed all the invoices from 17 April 2021 onwards;
• Mr X agreed the Council could visit Mr P while at his day service, provided it told him when this would be;
• Mr & Mrs X declined the offer of alternative forms of respite, preferring to take Mr P on holiday with the family;
• The Council said it had been a mistake to base the previous respite funding on the cost of a short break (£1,243 a week) as it should have been based on the cost of meeting Mr P’s care needs while away and was not to pay for a holiday itself. The Council asked Mr X to confirm the support provided for Mr P over 24 hours, so it could calculate the correct funding.
24. The Council visited Mr P at his day service on 3 November.
25. On 15 November, the Council received details of the support provided for Mr P over 24 hours from the private advocate.
26. In January 2023 the Council contacted the private advocate to arrange a date for another meeting to conclude its review, but did not receive a response.
27. In February and March the Council consulted its legal team about its draft assessment.
28. On 2 May the private advocate proposed a meeting on 4 May. It appears this did not go ahead, as the advocate sent another e-mail on 10 May proposing a meeting on 18 May.
29. On 22 May the private advocate said Mr X was unhappy at being asked to repay £14,000 to £15,000 from Mr P’s direct payment account.
30. In July the Council sent the draft assessment and care and support plan to Mr X. The assessment identified different views on the need for support from two people. His parents said one person needed to support Mr P to remain upright while another person provided personal care. However, his day service said he only needed support from one person with toileting and personal hygiene, and did not display challenging behaviour when supported by its staff. The assessment noted his parents had turned down the offer of an occupational therapy assessment. The assessment said Mr P:
• Always needed support with:
1. washing, bathing and showering
2. food and drink
3. managing money
4. being safe around the home
5. accessing the local community
• could do these things himself but struggled a bit:
1. using the toilet;
2. getting dressed/undressed and being appropriately clothed
3. household tasks
4. developing and maintaining personal relationships
31. The draft care and support plan identified the same unmet needs as in 2020 (see paragraph 9 above). It provided for a weekly personal budget of £519.96 but only identified expenditure totalling £493.80:
• Music sessions - £40
• Horse grooming - £70
• Leicester Tigers season ticket - £7.65
• Two days at a day service, including two 1:1 hours a day - £286.60
• Admission costs for Mr P to attend activities - £31.86
• Six weeks of respite a year - £57.69 (£3,000 across 52 weeks)
32. The plan did not say what the remaining £26.16 was to be spent on. The Council invited Mr X to get in contact to discuss the assessment, and the draft care and support plan. It also sent him a direct payment agreement to sign. He did not respond.
33. On 31 July the private advocate told the Council Mr X was not happy with the review and would be submitting a complaint. In August the private advocate told the Council they were no longer working with the family.
34. On 10 August Mr X made a complaint to the Council about the failure to support the family, including Mr P. He complained about the failure to do annual reviews, the failure to properly consider Mr P’s needs and circumstances and the failure to get relevant information from medical professionals and ignored the information they had provided.
35. On 23 August the day service told the Council Mr P would no longer attend. Mr X objected to the information it had shared with the Council about Mr P’s needs.
36. On 5 September the Council left a message for Mr X offering to revisit the assessment. He did not respond.
37. On 22 September Mr P’s GP wrote a letter to the Council. This said:
• On a recent visit to the surgery Mr P had been unwilling to leave for some time, but was eventually persuaded to get up with 2:1 support.
• The support with communication provided by the NHS (speech and language therapy - SALT) was not the same as the communication sessions Mr P’s personal budget had paid for. While the GP could not speak for the SALT team, its sessions were likely to be every few months or a few times a year.
• Mr P’s family wanted to retain the flexibility of his personal budget to continue to allow them to take him to visit family abroad.
38. When the Council replied to Mr X’s complaint in October, it said:
• Its assessment of Mr P’s needs had taken account of information from his GP, his day services, the private advocate and his parents.
• The respite funding was to support Mr P to go on holiday, not to pay the family’s costs of going away. The Council had accepted the request to support Mr P to go away with his family, rather than a residential respite placement. It would release respite costs on request.
• Mr P’s social activities were not restricted to bowling and cinema trips. So long as receipts were provided following any activities, it would be acceptable to the Council.
• It accepted the receipts showed Mr P had attended six music sessions costing £60, not £40, a session, but said his 2022 personal budget was enough to cover the cost sessions.
• It referred to the offers to discuss the assessment and proposed care and support plan (see paragraphs 28 and 32 above) and said it had done what was reasonably practicable to take account of Mr P’s needs and circumstances.
• It accepted it had not given the required four weeks’ notice before making changes to Mr P’s personal budget.
• It accepted there had been delays in completing the assessment and care and support plan, for which it apologised.
• It would send the details of three independent social workers who could provide a view on how to move things forward, so Mr X could select the one her preferred.
• Mr X needed to keep a clear audit trail of expenditure. It was not clear from the receipts which account the related to (Mr X’s brother also receives direct payments, and both parents have carer’s direct payments).
39. Mr X wrote again to the Council, as he was not happy with its response. When the Council replied in November, it said:
• It was withdrawing the offer to commission an independent social worker, as Mr X had questioned the independence of any social worker sourced by the Council.
• It would assign a new social worker to review Mr P’s support, and consider how his recreational needs were being met, as he was no longer going to the day service.
• It would audit Mr P’s direct payments, so would need receipts since April 2023 to make sure agreed outcomes were being met. If the audit was satisfactory, it would provide a new direct payment agreement for Mr X to sign on his behalf.

Is there evidence of fault by the Council which caused injustice?

40. The Council accepts:
• it delayed in assessing Mr P’s needs and apologised - it assigned a social worker to review his needs in February 2022, but did not send the draft assessment to him until July 2023. It also appears a review may have been overdue since 2021, as the last assessment was done in 2020.
• it failed to give four weeks’ notice before changing Mr P’s personal budget – to remedy this it reimbursed the money owed up to 6 August 2023.
41. The Council did not apologise for the failure to give four weeks’ notice. It needs to do so. Furthermore, retrospectively reinstating the personal budget did not necessarily remedy the injustice caused, as the family will not have know that additional expenditure could be incurred during the notice period. The Council needs to male a symbolic payment for the distress caused.
42. It appears the Council was more generous than it needed to be when providing money for respite breaks in 2020. While the decision to reduce this funding was understandably difficult for the family to accept, the Council explained the basis for the new budget. It is to cover the cost of meeting Mr P’s needs while he is away, not the general cost of a holiday. The Council’s decision did not amount to fault.
43. Section 22 of the Care Act 2014, says councils cannot provide healthcare services which are the responsibility of the NHS. Speech and language therapy is an NHS service. That it may be possible to pay privately for an enhanced service does not alter that fact. The Council was not therefore at fault for withdrawing its funding for communication sessions.
44. The day service confirmed that Mr P did not need 2:1 support when he was with them. The Council was not therefore at fault when it did not fund 2:1 support.
45. The Council is entitled to review the use of direct payments. It is something all councils do. They need to make sure the money has been used to meet the needs set out in a care and support plan. Councils are also entitled to ask for funds to be repaid if they have not been spent. The Council has explained it allows people to retain four weeks of direct payments as a contingency fund. People can also retain the money to cover overdue invoices.

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Agreed action

46. I recommended the Council:
• Within four weeks, sends a written apology to Mr X for the lack of notice before reducing Mr P’s personal budget and pays Mr X £250 for the distress caused by the lack of notice.
47. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman