Summary: Mrs X complained on behalf of her son, Mr Y, the Council refused to pay for the two-to-one care Mr Y needed and had not completed a review of his care needs between March 2022 and September 2023. The Council failed to properly assess, plan and review Mr Y’s care needs and did not communicate with Mrs X. The Council will apologise to Mrs X and pay her a symbolic amount of £500 to recognise the frustration, uncertainty and distress this caused her and will remind relevant officers to keep clear, complete and contemporaneous records.

The complaint

1. Mrs X complained on behalf of her son, Mr Y, that the Council delayed in taking responsibility for his adult social care needs when he moved from another council area in 2021. Mrs X further complained the Council refused to pay for the two-to-one care Mr Y needed and had not completed a review of his care needs between March 2022 and September 2023. Mrs X said this caused them both psychological harm. Mrs X wanted the Council to review Mr Y’s needs and to pay for the care he needs.

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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 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)
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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What I have and have not investigated

5. I have not investigated Mrs X’s complaint about the Council’s delay in arranging Mr Y’s care in 2021. This is because the complaint is late and there is no good reason to investigate it now.
6. I have investigated events between March 2022 and September 2023 when the Council issued its complaint response, even though some of the matters occurred more than 12 months ago. This is because Mrs X only became aware of the issue in April 2023 and came to us within 12 months.

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How I considered this complaint

7. I have read the documents Mrs X provided and discussed the complaint with her on the phone.
8. I considered the documents the Council provided in response to my enquiries.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Assessment

10. 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.
11. 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.

Care Plan

12. 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.

Reviews

13. 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.

Mental capacity and best interest decision

14. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
15. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
16. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

17. Mr Y is an adult who previously lived at home with his parents and siblings. Mr Y has autism and learning difficulties which significantly affect his language skills and behaviour. As Mr Y became older his behaviour became more challenging for his parents to manage at home.
18. Mr Y moved into the Council’s area a short time before the period of this investigation. He was receiving social care, arranged by the previous council. The care act assessment from the previous council recorded Mr Y attended an education placement during the week and needed support in all areas of his life and constant supervision. It recorded Mr Y’s parents were providing this support at home. It recommended 15 hours per week of two-to-one care for Mr Y.
19. Mrs X contacted the Council in March 2022 and explained Mr Y was in hospital following an escalation of his behaviour at home. She told the Council they were unable to meet his needs and keep him safe in the family home.
20. As part of Mr Y’s discharge planning from the hospital the Council held a best interests meeting to identify how to meet Mr Y’s care needs. Mr Y’s social worker (Officer 1), their manager (Officer 2), Mrs X and Mr Y’s sibling all attended along with other relevant professionals involved in Mr Y’s care. The Council did not keep a record of what was discussed during the meeting.
21. The outcome of the meeting was that Mr Y would be discharged to a supported living placement (the provider) who had already worked with Mr Y in the community.
22. Mrs X provided a partial recording of the best interests meeting. During the meeting Mrs X said that Mr Y was likely to need two-to-one care as that was how they managed his behaviour at home. Officer 2 responded that would be ‘fine’ and that it ‘would have to do that anyway’. Officer 2 asked Officer 1 to contact the provider and assure them it would agree the necessary support for staffing for Mr Y as two-to-one if he needed that.
23. Following the best interests meeting Officer 1 provided the cost of two-to-one care for eight hours a day and one-to-one care for the rest of the time to Officer 2. Officer 2 stated it was too expensive and would need to be reduced otherwise it would be a temporary placement while it sought an alternative. Officer 1 said they would discuss it with the provider once Mr Y had moved in.
24. Mr Y moved to the provider the same day and the provider put in place two-to-one care during the day and one-to-one care at night. When Mr Y moved to the provider he was no longer able to access education and so did not attend.
25. The Council completed an assessment of Mr Y’s needs at the end of May 2022. It recorded Mr Y was currently in an emergency placement. It set out Mr Y was at risk in the community from retaliation of strangers due to his behaviour which was mitigated by two-to-one support in the community. It said Mr Y had a history of aggression and violence which was currently being carefully managed by care workers using two-to-one support. It recorded Mr Y needed support for his care needs at all times as he was not able to regulate his behaviours and was often challenging to manage.
26. In the outcomes and wellbeing section, the assessment recorded Mr Y needed the support of one carer to support him with his personal care, toilet needs, maintaining and managing his nutrition and accessing the community. The outcome of the assessment was that Mr Y should be supported to move to a suitable placement by the beginning of June 2022.
27. The Council developed a care plan for Mr Y at the end of June. It said he needed the support of one carer to access education, get dressed, maintain relationships, prepare meals and maintain personal hygiene. There is no evidence the Council sent the assessment or the care plan to Mrs X.
28. In April 2023 the provider contacted Mrs X and told her the Council had not paid for all the care Mr Y was receiving. It said Officer 1 had agreed Mr Y should receive two-to-one care in a phone call to it following the best interests meeting and Mrs X had also confirmed that in a call following the meeting. It said the Council had told it Mr Y could receive shared care with other residents and one-to-one support for eight hour a day. It said Mr Y needed extra support for his safety and wellbeing and reducing his support was not a risk it was willing to take. It told Mrs X it could not continue to support Mr Y without payment, and could not reduce the support due to the risks. It asked Mrs X to talk to the Council about it.
29. Mrs X contacted the Council and said it was jeopardising Mr Y’s safety. She said that it was agreed in the best interests meeting that Mr Y need two-to-one care at a minimum. She asked what assessment the Council had done to make its decision that he did not need that level of support.
30. Mrs X complained to the Council in July 2023. She provided the audio recording of the best interests meeting and said everyone agreed that Mr Y needed two-to-one care and that an assessment by the Council had confirmed it was appropriate. Mrs X said the Council was putting Mr Y at risk and had consistently failed to act in his best interests. Mrs X said the Council had not reviewed Mr Y’s needs and she had no contact from Officer 1, Mr Y’s social worker. Mrs X said if the Council did not pay the provider soon it would stop the two-to-one care which was a major risk to Mr Y’s safety.
31. Officer 1 responded to Mrs X and said they were in communication with the provider about costs.
32. The Council responded to Mrs X’s complaint at the end of September 2023. It said:
• It apologised for its delay in responding.
• It agreed at the best interests meeting in 2022 for an emergency placement for Mr Y with the provider.
• There was no evidence Mr Y needed two-to-one support.
• It was happy to review the support package to see if an increase was needed.
33. Mrs X complained to us in April 2024.
34. In response to my enquiries the Council said it did not have a contract with the provider. It said it had sent two draft reviews to Mrs X in June and July 2024, but Mrs X had not agreed the content and so they had not been finalised. It said Mr Y’s placement was still temporary. It said contact with Mrs X had been complicated due to the financial dispute with the provider.

My findings

Care assessment and plans

35. Before Mr Y went into hospital the care plan in place said he needed constant supervision which was provided by his parents, and an additional 15 hours of two-to-one care a week while he was in education full time. Mrs X was clear at the best interests meeting Mr Y needed two-to-one support. The Council had not completed an assessment but verbally agreed Mr Y needed two-to-one care and it would agree that with the provider. The Council did not keep a written record of the best interests meeting which was fault causing uncertainty. However, on the balance of probabilities the Council had agreed that Mr Y needed two-to-one care at that time.
36. When the Council completed an assessment of Mr Y’s care and support needs In May 2022 it recorded he was at risk in the community and had a history of aggression and violence, was challenging to manage and was being carefully managed using two-to-one support. However, in the outcomes section of the assessment and in the support plan it said Mr Y needed the support of one carer. This inconsistency is fault. The Council has not explained:

• how one-to-one care would meet Mr Y’s needs and mitigate the risk he was to himself, and to others, identified in its assessment and which was currently being managed by two-to-one care;
• how Mr Y’s needs had reduced from the previous assessment identifying 15 hours of two-to-one care was necessary while Mr Y was also in education full time and so not at home full time;
• how Mr Y’s needs had reduced given that his behaviour had escalated so significantly he had been admitted to hospital and his parents were no longer able to care for him at home; and
• how Mr Y’s needs had reduced since the best interests meeting when it had agreed two-to-one care was necessary.

37. It is clear the Council discussed the cost of Mr Y’s care after the best interests meeting and it appears this may have influenced the contents of the subsequent needs assessment and support plan. It is for the Council, not the Ombudsman, to decide what care and support an individual needs. However, the Council’s failure to properly consider Mr Y’s needs and how it would meet those needs through its care plan was fault.
38. Mr Y was placed in a temporary placement in April 2022. The Council said in its assessment in May 2022 it would support Mr Y to move to a suitable placement by June 2022. The placement remained temporary in September 2024. The failure to provide Mr Y a permanent placement for over two years is fault.
39. The Council did not complete a review of Mr Y’s care assessment or care plan between May 2022 and June 2024. Despite offering a reassessment in September 2023 it did not complete one until after we told it we were investigating this complaint. The Council should have completed a review in May 2023, particularly as Mrs X had raised concerns about the validity of the assessment and care plan and as the care provider was raising concerns about its ability to support Mr Y safely without two-to-one support. The Council’s failure to complete a reassessment in line with the guidance was fault.
40. I do not find the Council’s faults caused Mr Y any injustice. This is because throughout the period investigated Mr Y has received two-to-one care from the provider, even though the Council has stated he does not require it.
41. However, the faults identified in the paragraphs above caused Mrs X uncertainty and distress about whether Mr Y’s needs have been properly assessed, considered and planned for. The Council missed multiple opportunities to properly assess and record its decisions about Mr Y’s needs and care.
42. I have not investigated the matter of payment for the care as that is between the provider and the Council.
43. The Council states it has since reassessed Mr Y’s needs however it has not finalised this as Mrs X does not agree with its assessment.

Communication

44. The Council’s communication with Mrs X was very poor and was fault. It did not share Mr Y’s care assessment and plan with her and so she was unaware of the decisions it had made. Mrs X was only made aware by the provider 12 months later. When Mrs X raised her concerns and then complaints with the Council it failed to respond to her for five months. This caused Mrs X frustration and distress as she believed Mr Y’s care was about to be reduced or cancelled.

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Agreed action

45. Within one month of this decision the Council will:
1. Apologise and pay Mrs X £500 to acknowledge the frustration, uncertainty and distress caused to her by the faults identified above. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended;
2. Complete Mr Y’s reassessment, ensuring it properly considers the views of the care provider and Mrs X, and clearly explains its rationale about how Mr Y’s needs can be met with one-to-one support.
3. Decide whether Mr Y’s placement should become permanent. If the Council decides it should not, then within three months of the final decision it should identify a suitable alternative permanent placement.
4. Remind social workers and managers in the adult social care team of the importance of keeping clear, complete and contemporaneous records of best interests meetings, including the matters considered, its decision-making process and the outcomes and actions.
46. The Council will provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman