Summary: Ms X complains the Council delayed arranging transport for her father, Mr Y, to attend a day centre. She says this prevented him from having cultural, social and cognitive stimulation. We find the Council at fault which caused Mr Y and Ms X injustice. The Council has agreed to make a payment and apologise to Mr Y and Ms X and take service improvement action.

The complaint

1. Ms X complains the Council:
1. delayed arranging transport for her father, Mr Y, to attend a day centre; and
2. refused to suspend Mr Y’s care home fees.
2. Ms X says this prevented Mr Y from having cultural, social and cognitive stimulation.

Back to top

The Ombudsman’s role and powers

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)

Back to top

How I considered this complaint

5. I considered the information and documents provided by Ms X and the Council. Ms X and the Council had an opportunity to comment on the draft decision. I have considered all comments received before making this final decision.
6. I also considered the relevant statutory guidance, as set out below. I have also considered the Ombudsman’s published guidance on remedies.

Back to top

What I found

What should have happened

Transport delay

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. 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.
9. 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.
10. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
11. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.

Suspension of care home fees

12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
13. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

14. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
15. NHS Continuing Healthcare is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.

What happened

Transport delay

16. Mr Y has health needs and lives in a care home. Mr Y’s home council is Barking and Dagenham, hereafter ‘the Council’. His care home is in Council B. Barking and Dagenham is legally responsible for Mr Y’s care and support plan.
17. In January 2024, the Council reviewed Mr Y’s care and support plan. It decided Mr Y should attend a day centre on a weekly basis. The plan detailed the day centre placement and the costs for transport to and from the day centre. The plan detailed the start date for the day centre and transport as early January 2024.
18. Ms X contacted the day centre to organise Mr Y’s placement. The day centre told Ms X the Council needed to arrange transport. Ms X contacted the Council several times.
19. In early March, the Council made a referral to Council B to arrange transport for Mr Y to attend the day centre weekly.
20. In May, Ms X complained to the Council that transport had still not been arranged. Ms X said she would organise private transport if it agreed to reimburse the cost. The Council told her it would not reimburse any transport paid for privately.
21. In June, the Council arranged Mr Y’s transport via his care home.

Suspension of care home fees

22. Ms X has both Health and Welfare and Property and Finance LPA for Mr Y.
23. In May 2023, Mr Y was discharged into a care home. Ms X asked the Council to apply for Mr Y to have his care home fees paid by NHS Continuing Healthcare scheme. She asked the Council to suspend Mr Y’s contribution towards his care home fees whilst awaiting the outcome of the assessment. Mr Y was assessed for NHS Continuing Healthcare in December 2023 and the assessment was ongoing until summer 2024.
24. The Council told Ms X it would not suspend the fees whilst the NHS Continuing Healthcare assessment was ongoing. It told her it would continue to send the invoices because it had to advise her of the charges which were due. It told her if the NHS decided to provide Mr Y with funding, and decided to backdate the funding, the Council would cancel the invoices from the date full funding was provided. It advised Ms X to contact its finance department to discuss alternative arrangements.

Analysis

Transport delay

25. The Council says it was not aware Council B had not sourced transport for Mr Y until May. However, it is the Council’s legal responsibility to implement Mr Y’s care and support plan and a six-month delay to do so is fault.
26. The delay to Mr Y accessing the day centre could have been minimised if the Council had considered other ways to arrange transport sooner. It would have been reasonable for it to have considered arranging transport with the care home or exploring the possibility of using direct payments so Ms X could have arranged transport for Mr Y, as she had suggested.
27. Ms X says Mr Y’s cognitive function has decreased since December 2023. I cannot say this is due to not accessing the day centre. However, the Council agreed Mr Y needed to attend to the day centre to support his wellbeing. Therefore, the impact of Mr Y not having access to this service for six months has caused him significant injustice.
28. The Council apologised to Ms X in May for the inconvenience caused by the delay arranging transport. However, I am not satisfied this apology properly addresses the injustice caused to Mr Y by not accessing the day centre for six months, or the time and trouble taken by Ms X to resolve the situation.

Suspension of care fees

29. Councils must not charge for any service which the NHS is under a duty to provide, which includes NHS Continuing Healthcare. The Council explained to Ms X if the NHS decide to provide Mr Y with full funding, it will cancel the fees from the date the NHS makes the payment. Whilst there does seem to be some delay in the Council referring Mr Y for a NHS Continuing Healthcare assessment, the family can pursue a retrospective claim if Mr Y is found to be eligible. I find the Council acted in line with law and clearly explained its process to Ms X. I do not find fault with the Council's decision making.

Back to top

Agreed action

30. Within four weeks of my final decision, the Council has agreed to:
1. Provide a written apology to Mr Y and Ms X for the impact caused by its delay leaving Mr Y without access to a service needed to meet his wellbeing needs for six months, and for the time and trouble caused to Ms X in her efforts to resolve the situation.
2. Make a payment of £500 to Mr Y to remedy the injustice caused by six months of lost provision by not having access to the service needed to support his wellbeing. In arriving at this figure, I considered our published guidance on remedies. I considered the Mr Y’s vulnerabilities, the length of the delay and that access to the day centre was part of his care and support plan. I consider this amount is proportionate and appropriate to the level of injustice caused.
3. Make a payment of £150 to Ms X to remedy the unnecessary time and trouble she was put to in her efforts to resolve the situation. In arriving at this figure, I considered our published guidance on remedies. I have considered the efforts Ms X made to resolve the situation and consider this amount is proportionate and appropriate to the level of injustice caused.
4. Review its procedure in the event it experiences difficulties sourcing support in a care and support plan. We recommend it puts in place a clear process for escalating concerns when the Council receives reports that care and support services are not being provided.
31. 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.
32. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

33. I have completed my investigation. I find the Council at fault and this caused injustice. The Council has agreed to make a payment and apologise to Mr Y and Ms X and take service improvement action.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman