Summary: Mr and Mrs C complain the Council delayed in completing a reassessment of their daughter’s care needs and failed to assess properly her needs which resulted in a reduction in her care package. Mr and Mrs C say their daughter’s one-to-one hours have been reduced which severely limits her opportunity to go out for evenings or at the weekend and her day centre activity has been changed and her well-being has deteriorated. The Ombudsman has found fault by the Council in delays in support planning, delay in a subsequent review and record keeping failings. The Ombudsman is satisfied the action already taken by the Council of a payment and review and agreed action of an apology is enough to provide a suitable remedy.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs C, complain the Council delayed in completing a reassessment of their daughter’s (D) care needs and failed to assess properly her needs which resulted in a reduction in her care package.

2. Mr and Mrs C say because of the Council’s fault their daughter’s one-to-one hours have been reduced which severely limits her opportunity to go out for evenings or at the weekend and her day centre activity has been changed and her well-being has deteriorated.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’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)
6. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (Local Government Act 1974, section 26A or 34C)

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How I considered this complaint

7. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr and Mrs C. I have explained my draft decision to Mr and Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Legal and administrative background

8. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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 Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
10. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:
1. The needs must arise from or be related to a physical or mental impairment or illness.
2. Because of the needs, the adult must be unable to achieve two or more of the following:

• Managing and maintaining nutrition;
• Maintaining personal hygiene;
• Managing toilet needs;
• Being appropriately clothed;
• Being able to make use of the adult’s home safely;
• Maintaining a habitable home environment;
• Developing and maintaining family or other personal relationships;
• Accessing and engaging in work, training, education or volunteering;
• Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
• Carrying out any caring responsibilities the adult has for a child.
3. Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.

11. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.
12. The Care Act 2014 gives local authorities 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 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 local authority must involve any carer the adult has. The support plan may 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.
13. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
14. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.

Key events

15. The Council completed a review of D’s needs in November 2016 following work to replace a shower chair and screen. This did not identify any change in D’s needs and a review of her personal budget was not considered necessary at that time.
16. The Council has provided a copy of its re-assessment of D’s needs dated 12 September 2017. This was a planned review and set out the current support as 35 core hours, 53 1:1 hours with share of one waking and one sleep in night staff and two days at a particular day centre. D’s parents also funded a different day centre for two days a week.
17. The assessment recorded Mrs C’s concerns that planned support did not always happen due to staffing issues and her request that her daughter should be able to stay up later and have a social outing one evening a week. Mrs C also noted she could not continue to fund the day centre and swimming sessions long term and sought funding for this going forward.
18. The review confirmed there were no changes to D’s support needs. A review of D’s personal budget confirmed this was enough to meet the needs and outcomes identified in the support plan and there was no change to this amount.
19. It was noted in the assessment that it had been difficult to evidence how much 1:1 support D received. Mr C says a promised log of support hours for D was not provided as part of the review. The review stated the staffing concerns and funding of the particular day centre would form part of a full service review. The review records the professional’s view that D was out in the community seven days a week and could benefit from down time at home to lower sensory stimulation.
20. The Council produced a draft support plan for D at this time but this was not completed. The Council explained to Mr and Mrs C that the next steps would follow after the full service review was completed which would include support planning for future provision to ensure the service remained sustainable for the future.
21. Mr and Mrs C continued to raise concerns with the provider about D missing swimming sessions, not having evening activities and not receiving the level of support set out in the 2016 plan.
22. The Council wrote to Mr and Mrs C at the end of June 2018. This set out the proposals for changing the way support was delivered and the proposed plan for D. The Council apologised for the time taken. The Council’s letter explained the aim of the review was to ensure a fair and equitable service to the eight people at the supported living service based on all clients’ assessed needs. It was considered the proposed changes would make the service more sustainable. The Council set out this would be achieved by increasing the number of shared hours of support and setting out clearly when individuals had planned activities. It was noted the change would have most impact in the evenings when residents would be supported via shared support other than for specific planned activities. This approach would allow flexibility in response to any changes in circumstances such as illness while being clear about what activities were planned for individuals. The Council noted the approach would result in some savings for it but stated the primary objective was to commission a service that, as a whole and for individuals, could be delivered reliably. The Council enclosed a proposed service timetable for D which set out the day to day activities and how these would be supported using 1:1 and shared hours. The Council considered this level of support provided D with a range of activities each week and ensured she went out regularly and met her assessed social care needs.
23. The Council received concerns from several families about the proposed changes and organised meetings to discuss the proposals. The Council says it met with Mr C and D’s advocate on 28 September 2018. Mr C says the advocate produced a report to say the proposed changes may cause jeopardy to D’s physical and emotional wellbeing. The Council has no notes for this meeting and says it does not have a report from D’s advocate. The Ombudsman would expect the Council to maintain adequate records of such meetings and not to do so is fault.
24. The Council subsequently sent a revised service timetable to Mr and Mrs C on 26 October 2018. The Council says the delay was because it had to consider all residents to ensure any rota was workable.
25. The Council confirmed the final service timetable for D in January 2019. Although some of this delay was due to discussions with Mr and Mrs C and others, I consider this is still an unacceptable period.
26. Mr and Mrs C appealed what the Council has referred to as the de facto support plan. In particular, Mr C says it provided no meaningful evening or weekend activities. The Council says the appeal was not upheld but could not provide a copy of the outcome. This is a further failure of record keeping by the Council.
27. However, Mr C has provided the Ombudsman with a copy of an email dated 13 December 2018 from the Council with the outcome of the appeal. This response provides an apology for the time taken in discussing the arrangements for care at the service and accepts a review was due for D in September 2018 which was now overdue. The Council promised a review in mid-February 2019 once the new rota had bedded in and any impact on D could be properly considered.
28. The new support plan for D started on 7 January 2019. The Council wrote to Mrs C in March 2019 to offer £1,500 to D as a gesture of goodwill as the Council did not act on the request for funding for D’s attendance at a particular day centre. Mrs C accepted on D’s behalf.
29. The Council confirmed in its response to the Ombudsman at the end of April 2019 that it was reviewing the support provided from 7 January 2019 to ensure it was effectively meeting D’s assessed needs and, if not, the support arrangements would be changed to ensure D’s needs were met.
30. The Council has provided a copy of this review which is dated 10 June 2019. This is a detailed document setting out the concerns raised by Mr and Mrs C and D’s advocate. It also sets out the relevant area of need (and related outcomes) under the Care Act eligibility criteria that the Council has a duty to meet as 'Making use of necessary facilities or services in the local community, including public transport, and recreational facilities or services'. It is accepted that as D is a wheelchair user she requires 1:1 support in order to access the community and opportunities for her to do are reduced if her 1:1 support is reduced.  However, it is assessed that D has an effective timetable of activities that she is able to engage in that meet her need for access to recreational and leisure activities in the community which includes funding and support to attend two day centres and to go swimming. It was further assessed that there was no evidence to suggest D’s wellbeing was adversely affected by the reduction in the number of 1:1 support hours and that the current level of support was sufficient to meet her needs regarding accessing the community.
31. It is open to Mr and Mrs C to initially appeal through the usual avenue if they are unhappy with the outcome of the Council’s review above. If any subsequent appeal identified the new arrangements were not adequate to met D’s needs it would be open to Mr and Mrs C to make a new complaint to the Ombudsman so any injustice to D could be considered.

Agreed action

32. The Council should within one month of my final decision write to Mr and Mrs C to apologise for the delay in putting in place the detailed new arrangements for D’s care, the delay in completing D’s 2018 annual review, further delay in completing a review of how well the new arrangements were meeting D’s assessed needs and its failures in record keeping.

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Final decision

33. I have completed my investigation. This is because there was fault by the Council causing injustice but I consider the actions already taken by the Council together with the agreed action above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman