Summary: The Council failed to manage expectations when making transition arrangements for adult social care support following the end of a residential college placement. The Council proposed a move in date when arrangements were ongoing. This caused Mr C and his parents some anxiety and caused Mr & Mrs B the time and trouble of trying to get answers and pursuing a complaint. The Council should apologise and pay £200 to Mr C and to Mr & Mrs B.

The complaint

1. The complainant, who I will call Mrs B, says, there was no transition plan in place when her son (Mr C) finished college in July 2018, despite her contacting the Council in January. The Council argued with the previous council about who should provide services and that delayed the Council putting services in place. It took a long time to get an agreement about what services the Council would provide to Mr C. The funding panel refused several times, and it felt to Mrs B like the Council was making decisions based on funding rather than meeting Mr C’s care and support needs. It took from July to January for the Council to provide a placement.
2. Eventually the Council gave Mr C a possible date of 3 December 2018 to move to a new home. The family prepared Mr C for this and were counting down the days with him, but again the funding panel did not agree, and a move did not go ahead on this date. Mr C and the family were very disappointed, and it caused Mr C to become agitated and for his eczema to flare up. The Council refused to give Mr C’s records to Mrs B when she asked for them, which means time and trouble raising a complaint with the Ombudsman. Mrs B just wanted good communication from the Council, to understand why everything seemed to take so long, and to feel confident going forward.

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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 normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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)

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How I considered this complaint

7. I considered:
• Information provided by Mrs B and the Council.
• The Care Act 2014 and associated statutory guidance.
• Responses from both parties to a draft of this statement.

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What I found

8. Mr C lived at a residential college in Monmouthshire. Mr C has Downs Syndrome and severe learning disabilities, which has a significant impact on his ability to communicate. Mr C’s parents are his representatives.
9. The family moved from Wales to Cumbria. In February 2018 the family contacted Cumbria County Council to advise that Mr C would be moving to its area when he finished college that summer and would need support in place when he did. The family wanted Mr C to move to supported living accommodation in Cumbria.
10. The Council must meet the eligible care needs of those that are ‘ordinarily resident’ in its area. There is no definition of ‘ordinary residence’ and it is not always straightforward to settle. Councils should apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. For people who lack capacity to make decisions about where to live, it may mean they cannot voluntarily adopt a place of residence.
11. The Care and Support (Disputes Between Local Authorities) Regulations 2014 sets out procedures’ councils must follow when disputes arise about a person’s ordinary residence. The Care and support statutory guidance also give information to councils about what it should do in these circumstances.
12. The two councils were in dispute about ordinary residence between March and June. Over this time Monmouthshire continued to meet Mr C’s needs, as it remained responsible to do so. If councils cannot reach an agreement within four months, they must apply to the Secretary of State to decide. However, by the end of June Cumbria County Council accepted Mr C is ordinarily resident at the point he returns to his family in Cumbria. Therefore, it was not necessary to refer to the Secretary of State, the councils resolved the issues within four months, and Mr C’s needs were met over that time. The Council accepts it should have communicated better with the family over this time.
13. When someone decides to move to another area, and their ordinary residence status changes, it is important to ensure care and support is in place during the move. The care and support statutory guidance’s chapter on continuity of care sets out the process councils must follow to ensure the person’s care and support continues, without disruption, during and after the move.
14. The first council (Monmouthshire) should have had a transition plan in place for Mr C’s move. It should have kept in contact with Cumbria County Council and Mr C’s parents about progress on the care and support in place for the day of the move.
15. The guidance states that Cumbria County Council should carry out an assessment of Mr C’s needs and agree a support plan before the move. This would ensure arrangements are in place when Mr C moved to its area. However, the guidance recognises this is not always possible. The Council had not completed the assessment before Mr C’s move. Therefore, it had to meet Mr C’s needs in accordance with Monmouthshire County Council’s support plan, until it completed its own assessment and put in place a support plan with Mr C.
16. Because Mr C was leaving college, the Council would have to rely on his support plan for school holidays. The Council should also take account of the views of Mr C and his parents about how his needs were met in the interim period. Mr C’s family meet his needs during school holidays and his father is his main carer, this continued when Mr C moved to Cumbria and the family were happy with this arrangement.
17. The Council completed an assessment of Mr C’s care and support needs quickly once he moved to its area in July. The Council developed a support plan with Mr C’s parents (Mr & Mrs B). The Council’s records show Mr & Mrs B were happy to support Mr C at their home until a suitable package of care was in place. But they wanted Mr C to move to supported accommodation as soon as possible to maintain his independence and skills he had gained at college. The Council assessed Mr C can experience periods of upset and anxiety, mainly associated with new environments. A transition approach and ‘now and next’ help support Mr C, otherwise there would be a significant impact on his mental health and emotional wellbeing.
18. The Council contacted various accommodation providers, and one became a realistic prospect. Mr C had various visits to the accommodation provider, and everyone was satisfied this would be a suitable placement. The social worker told Mr B the next step was to agree an appropriate support package to meet Mr C’s assessed needs within the service and put in a funding request.
19. In the background to this the Council was aware of commissioning concerns with this care provider that it needed to resolve. The Council did not agree Mr C’s funding request, because Mr C’s assessment and other information did not support the one to one support requested in the funding application. The team manager was to meet with the accommodation provider. The Council also contacted the day care service which Mr C was attending three days per week, to see if they could offer five days per week. The social worker contacted Mr B who said they were keen to ensure Mr C still moved to the accommodation provider on the proposed date, which was in just over a week.
20. The social worker took the case back to the funding panel, five days before the proposed move. The Council felt Mr C did not need the one to one support requested, and much work was needed with the accommodation provider to maximise shared support with other tenants. The Council advised the accommodation provider the proposed move in date was not achievable. The accommodation provider updated Mr B who then had a discussion with the Council. Mr B was unhappy and frustrated the proposed move in date was not going ahead, the Council explained what was happening and said it would keep him updated of any developments.
21. The Council approved the care package and funding the following week; Mr C moved to the accommodation a month later than originally proposed. Mr C has settled well, and everyone is happy his support package is suitable.
22. Mrs B made a subject access request to the Council for information about Mr C, under the Data Protection Act. The Council responded and declined to release the requested information. The Council advised Mrs B if she was unhappy with the way it dealt with her complaint, she could refer to the Ombudsman, and the Ombudsman would get records to inform its decision making.

Was there fault causing injustice?

23. I find the Council was not at fault in its dispute of Mr C’s ordinary residence. It was entitled to challenge its responsibilities and had valid reasons for doing so. It followed an appropriate process of seeking legal advice. Eventually the councils resolved the dispute within the timescale set out in guidance, and without the need to refer to the Secretary of State. However, although the Council was in communication with Monmouthshire Council and was seeking legal advice, it failed to communicate with Mr C’s family and clarify to them what was happening. This led Mr B to complain. The Council apologised to Mr B for its lack of communication and shared the learning with its staff. This is appropriate action in response.
24. The Council could not complete a suitable assessment of Mr C’s care and support needs before his move, both because of the distance involved and because it would be right to assess him in his new setting. Therefore, in line with guidance, the Council completed an assessment as soon as possible and had gathered information from the first Council about Mr C’s existing care and support plan in place for school holidays.
25. Mr C’s needs were met by his family, in the same way they would have been had it been a school holiday. But, as Mr C would not be returning to college this time, it was important to have his long-term accommodation and support arranged as soon as possible. Mr C’s family were concerned that if he spent too long at home, he would lose some of his independence and daily living skills. There was also uncertainty for the whole family about what would be happening next, and Mr C finds routine important.
26. Before the Council completed its care needs assessment of Mr C, it shared Monmouthshire’s assessment with potential accommodation providers, which shows there was no early delay in trying to arrange a placement. When the Council sourced a suitable placement, that provider said it could not offer many shared hours with the other tenants as those tenants needed one to one support. It seems this was the reason behind the funding request for Mr C’s one to one hours; it was not that Mr C needed them, but that to move to that accommodation he would need one to one support as could not share much support with other tenants.
27. I can understand why it would look to Mrs B that Mr C’s support arrangements were not progressing because of funding, and why Mrs B would believe it likely the Council was making decisions based on cost rather than care needs. However, the evidence is that it was because of Mr C’s care needs that the funding panel refused the application. The support package requested was more than Mr C needed and could potentially result in the loss of independence and deskilling which Mr & Mrs B were keen to avoid. There was no fault in the Council’s decision making.
28. The reason it took a long time to agree the move was down to commissioning issues with the accommodation provider. The Council explains it tries to ensure that any contractual issues do not impact on the support that someone receives and any issues between the Council and support provider are addressed in a way that do not hold up any potential moves. However, in some circumstances it is necessary to review arrangements and funding before agreeing that someone can be supported. In those circumstances, it tries to resolve any issues as quickly as possible.
29. The Council was aware of commissioning issues with this Care Provider before it made the referral for Mr C to live there. The Council did not manage Mr C’s, or his family’s, expectations around this issue. The Council agreed a proposed move in date, knowing Mr C’s care package was not agreed and commissioning issues with the Care Provider were ongoing. The Council should never have given Mr C a proposed date or allowed the Care Provider to do so. The Council was aware from Mr C’s assessment of his anxiety, particularly around new environments and changes. At that point the placement could still have fallen through and not gone ahead at all. The Council should not have given Mr C a date until it was definite, and then he could work towards that appropriately. The Council should have been honest with Mr C and his family, and properly managed their expectations.
30. The first time the Council told Mr & Mrs B about commissioning issues was in a telephone call on 3 December when the proposed move did not go ahead. In an e-mail of 11 December, the Council confirmed there is a commissioning issue that in some way needs to be resolved before a date for Mr C to move can be agreed. The Council knew of this issue from the outset and should have said this to Mr & Mrs B much sooner.
31. Mrs B explains the failed move in date caused Mr B anxiety and caused his eczema to flare up. The family were counting sleeps in the run up to the move, to ensure Mr C was prepared and felt positive about it to give the best hope of a smooth transition. It was difficult to then tell him that date was not happening, and not have an alternative date to work towards.
32. Mrs B asked the Council for information under the Data Protection Act. Mrs B just wanted to understand what had happened in Mr C’s case and why it took so long for him to move to a placement. I cannot say what, if any, information the Council should have released to Mrs B under the subject access request – that is the role of the Information Commissioner’s Office. Mrs B says the Council told her it would not release the information, but she could get it if she complained to the Ombudsman. The Council is correct to say the Ombudsman can see restricted information to carry out our investigation. The Ombudsman shares information with complainants to show what we have relied on to form our views. If information is confidential, we will not share it with the complainant when we share our findings on the complaint. Therefore, it is not true to say someone will get records when contacting the Ombudsman. The Council should have directed Mrs B to the Information Commissioner’s Office to confirm whether she was entitled to the records she was requesting.
33. The issue of how long it took to move Mr C to a placement was not dealt with in the Council’s complaint response, I do not know whether this is because the Council overlooked it or because Mrs B did not clearly make this a point of complaint. Therefore, I cannot say the Council was at fault in not responding to that concern.
34. The Council did not uphold Mrs B’s complaint about the lack of transition plan, the move was delayed, and that decisions were made because of funding. However, it did take some learning from the complaint which is exactly what complaints should be used for. The Council said it would reiterate to social workers that they need to be clear on the process involved in agreeing packages of care. The complaint highlighted the importance of ensuring expectations are not set before packages of support are agreed; the Council would raise this with social workers and the commissioning team to feedback to care and accommodation providers.

Agreed action

35. To acknowledge the impact of its fault on Mr & Mrs B, and on Mr C, the Council will:
1. Apologise to Mr C and Mr & Mrs B for not telling them about commissioning issues with this care provider, and for allowing them to work towards a proposed move in date at a time commissioning issues were ongoing and the Council had not agreed Mr C’s care package. The apology to Mr C must be given in a way that meets his communication needs.
2. Pay Mr C £200 to recognise the anxiety and distress caused by the delay.
3. Pay Mr & Mrs B £200 to recognise the upset caused trying to support Mr C through his anxiety, and the time and trouble involved in complaining.
36. The Council should complete the agreed actions within the next month, and evidence its compliance to the Ombudsman.

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Final decision

37. I have completed my investigation on the basis the agreed action, and actions the Council has already taken, are sufficient to acknowledge the impact of the fault.

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Investigator's decision on behalf of the Ombudsman