Summary: Mr and Mrs X complain about the Council’s refusal to increase Mr W’s support hours, causing distress. The Ombudsman finds no evidence of fault in the Council’s actions.

The complaint

1. Mr and Mrs X complain the Council has wrongly refused to increase Mr W’s support hours, causing Mr W distress. They also consider the Council is wrong in seeking to speak to Mr W alone.
2. Mr and Mrs X feel the Council, through its actions, has discriminated against them as a family, causing Mr W and them distress.
3. I note Mr W is a brother of Mr X.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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

8. I spoke to Mr X and I reviewed documents provided by Mr and Mrs X and Mr W. I gave Mr and Mrs X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Care and Support Act statutory guidance

9. The Department for Health issues statutory guidance on the Care Act 2014 that we expect councils to follow. I have referred to relevant information below.
10. The care assessment must be person centred throughout, involving the person and supporting them to have choice and control.
11. Councils must consider whether a person can be involved in their assessment or whether they would have substantial difficulty. If a person does have substantial difficulty, the council must find someone appropriate and independent to support and represent the person.
12. “Where there is a family member or friend who is willing and able to facilitate the person’s involvement effectively, and who is acceptable to the individual and judged appropriate by the council, they may be asked to support the individual in the assessment process. Where there is no one thought to be appropriate for this role – either because there is no family member or friend willing and available, or if the individual does not want them to be a part of the assessment – the local authority must appoint an independent advocate.”

What happened

13. Mr W received 15 hours’ support per week from a personal assistant.
14. In January 2019 the Council began its review of Mr W’s care with his father and Mr and Mrs X present. The family wanted the Council to fund support for 30 hours’ per week. Mr and Mrs X say the Council agreed to this. Though I have not seen documentary evidence of an agreement.
15. In April Mr W’s mother chased the Council for an update. The Council said it was still gathering information. The Council then sought to speak to Mr W alone to gather his views and wishes. However, his mother told the Council she would not allow this, unless there was good reason.
16. Mr and Mrs X then complained to the Council. In its final response the Council said it had not completed Mr W’s review pending receipt of his own views on his care.
17. Mr and Mrs X complained to the Ombudsman. They disputed the content of the Council’s review and considered the Council should have increased Mr W’s support hours as agreed in January 2019. They were also unhappy the Council wanted to speak to Mr W alone.

Findings

18. The statutory guidance says a care assessment must be person centred. Therefore, a council must ascertain the views and wishes of the person who will receive care. If a council considers a person will have difficulty during an assessment and they do not judge any family or friends appropriate to assist, they must appoint an independent advocate.
19. The Council did not consider family or friends appropriate to support Mr W in the assessment and wanted to speak to him alone. However, the Council also made clear it would appoint an independent advocate if needed. The Council’s actions were in line with the statutory guidance and therefore I do not find fault.
20. I appreciate Mr and Mrs X thought it inappropriate for Mr W to speak to the Council alone. However, the Council has a duty to gather Mr W’s views on his care and will decide if he needs support to do this. It is also for the Council to decide if family and friends are appropriate to provide support or whether it must engage an independent advocate.
21. The Council needs to complete its review, taking into account the views of Mr W. However, while the Council has been unable to gather Mr W’s views, it cannot proceed. I find this is through no fault of the Council.
22. Mr and Mrs X say the Council agreed to an increase in support and then reneged on this. However, I consider there is insufficient evidence to prove the Council had agreed to increase in Mr W’s hours and therefore I cannot find fault in this regard. It is not appropriate to investigate this further at this stage, because the Council’s review is incomplete and subject to change.
23. Mr and Mrs X also dispute the content of the Council’s review to date. However, I consider it is not possible to investigate this until the Council completes its review and reaches a decision on Mr W’s care and support. This is because the Council’s review is subject to change, pending Mr W’s views.
24. Only a court can decide if a council has unlawfully discriminated against a person. However, the Ombudsman can consider if there has been some fault by the Council. Having considered the law and the Council’s actions, I find no evidence of fault by the Council in its actions in seeking to provide care to Mr W.

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Final decision

25. I have completed my investigation. This is because I find no evidence of fault in the Council’s actions in seeking to provide care to Mr W.

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Investigator's decision on behalf of the Ombudsman