Summary: Mrs X complains about how the Council planned care for her son, Mr K. The Council took too long to start planning Mr K’s transition from children’s services to adult social care. Despite its best efforts, the Council failed to provide overnight respite care and has not fully supported Mr K’s mother to arrange this and use direct payments. The Council’s shortcomings have caused Mr K’s mother distress, uncertainty and frustration. The Council has agreed to apologise to Mrs X, make a symbolic payment, and work with Mrs X to arrange respite care.

The complaint

1. Mrs X complains about how the Council has dealt with her son’s care planning. In particular, Mrs X says the Council:
• delayed her son’s transition planning from children services to adult services and did not assess him properly under the Care Act, or reflect his Education Health and Care (EHC) Plan and needs in the new assessment;
• has not arranged suitable respite in a timely manner;
• has not ensured that direct payments are sufficient to cover his care costs; and
• took too long to assess her needs as a carer.
2. Mrs X says that as a result of the Council’s shortcomings she has been left uncertain of the care her son will get, and has been left without respite care so that she can have a break from caring.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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. I considered the information provided by Mrs X and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments of both parties before issuing this final decision.

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What I found

The law and guidance

6. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  
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. 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.
10. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)
11. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
12. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.

What happened

13. Mrs X lives her son Mr K. Mr K is disabled and his needs were met through his EHC Plan, his special school, a paid personal assistant and overnight respite care at a children’s residential centre.
14. The Council should have planned Mr K’s transition to adult services when he was 13 or 14. However, it did not assess how it might meet Mr K’s care and support needs until July 2023, six months before his 18th birthday.
15. The Council visited Mr K at school and also at home, where Mrs X advocated for him. The Council’s assessment found that Mr K’s would continue to need support for personal care, independent living, accessing the community, and for respite care.
16. Mr K’s children’s respite care would cease when he turned 18, and so the Council started to consult providers for adult respite care. The Council consulted six providers between July and October 2023. It found that none of the care providers could meet Mr K’s needs. The Council told Mrs X it would extend Mr K’s children’s respite care to February 2024.
17. Mrs X complained to the Council that it had started the transition planning too late and now no respite was in place beyond February 2024. The Council responded to the complaint. It acknowledged that it had not started transition planning soon enough and apologised for this. The Council said it had been working to find respite care.
18. During this time, the Council met with Mrs X. it discussed the ongoing search for respite care and mentioned that if it could not find a place for Mr K, it could either pass the budget to a care provider to arrange respite, or make direct payments to Mrs X to arrange this herself, possibly with carers in the home.
19. Mrs X asked the Council to escalate her complaint to stage two of its process. She said that the apology did not change anything and she was not clear what her son’s care package would be under direct payments. Mrs X also asked for a carer’s assessment to discuss what support she would need.
20. At the beginning of January, Mrs X told the Council she could not find overnight carers and she described how she wanted to visit her family but could not without care in place for Mr K. She asked the Council to explore its offer to pass the funding for respite to a care provider to arrange.
21. The Council continued to consult respite care provision. It approached several out of area providers. The case notes show that when a provider could not meet Mr K’s needs, the Council contacted them to discuss what support might make this possible, including providing a carer to go into the respite centre to give 1:1 care. The Council still could not find a provider that could meet Mr K’s needs.
22. The Council responded to Mrs X’s complaint at stage two of its process. It said that it had met with Mrs X to discuss the situation, and that it would approach all the care providers again to see if there were any changes. It said it would not pay Mrs X any compensation because Mr K had not been without a service. The Council also explained that it was developing a new respite and short breaks strategy to increase capacity.
23. By mid-February 2024, the Council had reviewed the situation. Mr K was on the waiting list for one respite provision that could meet his need. Another had been offered but the distance meant that it was not suitable for Mr K to travel to after school. Mrs X considered this respite centre for weekend stays, but it had no availability at weekends. The Council said that all the respite providers had been consulted. Its case notes say the only option is for Mrs X to have overnight carers in her house for respite, or for carers to take Mr K to private let holiday accommodation.
24. Mrs X asked the Council to approve the direct payments as Mr K had no respite care in place at all. Mrs X made it clear that she did not want this but she felt she had no choice. Mrs X wanted her reluctance reflected in her carer’s assessment.
25. The Council agreed the direct payments at the beginning of March 2024. The payments cover 24 nights of respite (averaged into monthly payments) In the meantime, the Council continued to try to arrange respite and Mr K remained on the waiting list for one respite provider.
26. Mrs X had concerns about the direct payments and asked the Council for help. She was concerned that the payment was not enough to pay for overnight care, and she was not sure how to use the direct payments.
27. In May, the Council found a respite care provider but again Mrs X decided that it was quite far for Mr K to travel and so would only be suitable for weekend stays, and again, these were not available.
28. The Council completed an up-to-date carer’s assessment with Mrs X in April 2024. This was to address Mrs X’s concerns about her previous carer’s assessment. The assessment focussed on the lack of respite care and said that Mrs X and the Council would continue to look for alternatives. The Council would continue to make direct payments to support Mr K to access the community.
29. In response to Mrs X’s complaints and to my enquiries, the Council has explained that it has collaborated with carers to develop a short breaks strategy. This strategy aims over the coming year, to ensure that there is a better choice of short breaks. It has started to work across the Council to identify how it can maximise current capacity, how it books breaks, and how people can access these.

Analysis

30. The Council has acknowledged that it started planning Mr K’s transition to adult services too late. I note that Mr X had services throughout this time, but the poor planning caused Mrs X distress and uncertainty and has left her feeling that had the Council started sooner, Mr K may have not been left without respite care.
31. There is no fault in how the Council assessed Mr K’s needs. It based its assessment on its observations of him at school and its meeting at home with Mrs X.
32. The Council’s delay in starting the transition planning, meant that it started searching for adult respite too late. Clearly, the respite care providers cannot meet Mr K’s needs or do not have any availability. It is possible that even if the Council had started transition planning on time, it would not have been able to arrange respite care.
33. The Council has consulted numerous providers, it has offered providers more support to meet Mr K’s needs. It looked out of its area, and was able to find two providers who could offer overnight care but not at the weekends. Unfortunately, neither of these were suitable for Mr K during weekdays due to the travel involved.
34. I note that the Council has agreed direct payments. Mrs X says this is not sufficient, but the Council has calculated the amount based on the assessment, and it seems to me that Mrs X has not been able to find carers, and there is no information to suggest that this is due to the direct payments being too low.
35. However, my finding is that there is service failure by the Council. Overall, none of the Council’s actions have resulted in respite care for Mr K. This is service failure by the Council and it has meant that Mrs X has not had any respite from caring for her son. She has described that she has no family help locally, and cannot leave her son unattended in the house for any amount of time.
36. In addition, Mrs X has told the Council that she could not find carers for overnight care in her home, and from the information I have, the Council has not helped her with this or how to use the direct payments. In this situation, where the Council has been unable to find respite care, it is not enough for it to make direct payments and then leave Mrs X unsupported trying to arrange care for her son. The lack of support to Mrs X to arrange the care and use direct payments, in this particular case, is fault by the Council.
37. Mrs X has now found a provider that may be able to give respite care in her home overnight. The Council said it would need to review what was working in Mr K’s care plan so that it could decide how to fund this provider.
38. Mrs X has told me that she is concerned that the Council will not make a decision on this in good time, and that its communication to her in the past has been inadequate. The Council says it has been unable to arrange the review because Mrs X has not been available. It has agreed to contact Mrs X about the new provider as part of the agreed remedy.
39. The Council also agreed a one-off direct payment of £500 and said that Mrs X could use this flexibly. Mrs X tells me she would like to use this for a holiday for her son. The Council has agreed to contact Mrs X about this too. According to the remedy the Council should agree the respite provision and the use of the one-off payment within one month of this decision.
40. According to Mrs X’s case notes, the Council completed a carers assessment in November 2023. Mrs X disagreed with the assessment and asked the Council to do it again. The Council made an appointment with Mrs X to do this in February 2024. This did not go ahead but the reasons for the cancellation are not recorded in the case notes. In March, Mrs X asked again to re-do the carer’s assessment as she wanted this to reflect that she had agreed to direct payments because she had no other choice. The Council completed the assessment in June 2024.
41. The Council took too long to complete the carer’s assessment following Mr K’s transition to adult social care. This caused Mrs X a degree of uncertainty and frustration. However, the main focus of the carer’s assessment was the lack of respite care and I have set out the service failure by the Council and how this has impacted on Mrs X above.

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Agreed action

42. Within one month of the final decision statement, the Council will:
• Apologise to Mrs X. 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.
• Make a symbolic payment to Mrs X of £500 in recognition of the distress, uncertainty and frustration its shortcomings have caused her.
• Work with Mrs X to identify carers to provide overnight respite care in her home as a short-term measure while it continues working to find overnight care out of the home. Care can be commissioned or the Council can support Mrs X to use direct payments to arrange this care. It should decide whether it can fund Mrs X’s suggested provider, and whether she can use the one-off payment already agreed to take her son on holiday. Both decisions will be made within one month of this decision.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation. There was fault causing injustice to Mrs X and Mr K.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman