Summary: The Ombudsman finds fault with the Council for failing to assess Mr C’s needs and produce a care and support plan. We also find fault with the Council for failing to carry out a carer’s assessment for Mr C’s parents. This caused an injustice to Mr C and his parents. The Council agrees actions to remedy the injustice.

The complaint

1. Mrs B complains that, since March 2018, the Council has not properly dealt with her brother, Mr C’s, social care needs or with his parents’ needs as carers.
2. Mrs B complains the Council failed to:
• properly assess Mr C and produce a care and support plan;
• complete a carers assessment for Mr C’s parents;
• consider respite care; and
• provide holiday funding.
3. Mrs B says that because of the Council’s failings Mr C’s family incurred expense and were caused distress, inconvenience and uncertainty.

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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. 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 all the information provided by Mrs B. I made enquiries with the Council and considered its response along with the relevant law and guidance.
8. Mrs B and the Council had the opportunity to comment on my draft decision. I carefully considered all the comments I received.

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What I found

Law and guidance

Assessment and support plans

9. 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. 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.
10. 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.
11. In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.

Review of care and support plans

12. The Council must keep plans under review and are expected to review at least annually.
13. The review must not be used to arbitrarily reduce a care and support package.
14. The person, family member, carer or advocate can also request a review.

Carers assessment

15. The Care Act says the Council must consider whether to carry out a carers’ assessment if:
• an individual provides care for another adult; and
• it appears the carer may have any level of needs for support.
16. It says the carers’ assessments must seek to establish the carer’s need for support and the sustainability of the caring role itself, including both practical and emotional support the carer provides to the adult.
17. The Council must consider whether the carer is currently able and willing to continue to provide care for the adult needing support.
18. The carers' assessment must also consider the carer’s activities beyond their caring responsibilities and the impact of caring upon those activities.
19. The guidance sets out what reviews should cover.

Personal budget

20. The Care and Support guidance says:
• Everyone must receive a personal budget as part of the care and support plan if the local authority is meeting their needs, either because the needs are eligible needs or because it has chosen to meet them.
• The budget must be allocated “in a timely manner, proportionate to the needs to be met”.

Council adult services complaint procedure

21. The Council sets out what complaints will be dealt with under this procedure. This includes:
• Complaints about assessments, care plans and reviews.
22. It says it accepts complaints by a suitable representative.
23. The procedure sets out the timeframes for handling and responding to the complaint.

What happened

24. What follows is a brief chronology of key information. It does not include all the information I reviewed during my investigation.
25. Mr C is an adult with learning disabilities. The Council provides a personal budget for him to receive care from a personal assistant. Mr C’s parents also help with his care. Mr C’s sister, Mrs B, complains on behalf of her brother and parents.
26. Until March 2018 Mr C’s funding came from a combination of adult social care and education. The Council decided the 16 hours per week education funding would stop on 31 March 2018 and adult social care would replace that funding. However, when the education funding stopped on 31 March 2018 it was not replaced. This left Mr C without funding for 16 hours per week. Mr C’s parents told the Council about the impact the reduced care hours was having on them.
27. In November 2018 the Council issued its draft budget proposal. Mrs B told the Council its proposed budget left her parents with 121.5 hours of informal care each week. The Council also proposed to stop the one-off payments it previously made for holidays. It said Mr C should self-fund the holidays from his benefits. The Council said it would make a referral for an income maximisation assessment to see if Mr C was entitled to any additional benefits. Mrs B also told the Council her parents needed a carers assessment and requested overnight respite care.
28. The case went to panel in December 2018 and the formal support hours were agreed. The one-off payments were not agreed.
29. In July 2019 Mrs B made a formal complaint to the Council, her complaint headings are summarised in paragraph 2. The Council responded in August 2019 and upheld four of her five complaints. It did not uphold her complaint about the one-off holiday payments. It offered an apology and a financial remedy of £6600 to reimburse Mr C’s parents for the additional care hours they funded between March and December 2018. It also agreed to:
• complete a carers assessment on 8 August 2019;
• arrange a visit to a respite facility; and
• allocate a new social worker to complete an assessment and produce an up to date support plan.
30. In March 2020 Mrs B complained to the Ombudsman. She says despite the Council upholding her complaints in July 2019 it failed to:
• complete the agreed assessments for Mr C;
• respond to Mrs B’s correspondence about the outstanding matters; and
• provide Mr C with an allocated social worker.

My findings

31. I have summarised my findings under the main headings of Mrs B’s complaint.

Failure to properly assess Mr C’s needs and produce a care and support plan

32. I find fault with the Council for failing to reassess Mr C’s needs. This should have taken place prior to the education funding ending in March 2018. The Council also failed to respond to Mrs B’s request for a review.
33. There was a significant delay between the education funding ending in March 2018 and the case going to panel in December 2018, when additional care support funding was agreed.
34. The failure to conduct a review also delayed Mrs C’s request for respite care being considered.
35. The Council accepts this fault and has apologised to the family. It also made a payment of £6600 to Mr C’s parents to reimburse the additional hours they funded between March and December 2018.
36. These faults placed additional care responsibilities on Mr C’s family, who were already struggling to cope. It placed them under significant financial and emotional strain.
37. In addition to this payment I recommend the Council pays the family a financial remedy for the unnecessary distress and additional strain this placed on them.

Failed to complete a carers assessment and consider respite care

38. The Care Act is clear when a Council should complete a carers assessment, this is set out in paragraphs 15-19.
39. The Council failed to carry out a carer’s assessment for Mr C’s parents and this had serious implications for them. They were both carrying out most of Mr C’s care and their own needs were not assessed and considered. It also meant Mrs B’s requests for respite care were overlooked.
40. Mrs B expressed her concerns to the Council:

“Mr C is central to everything that my parents do. Of course, they have interests but they have no time to pursue those interests as they are caring for Mr C”

“If mum didn’t need to work 7 days a week then my parents would be better able to manage their care (especially night-time) care responsibilities”

“I would say that the risk is quite substantial as sustained sleep deprivation is very dangerous and can lead to premature death. Both my parents have gained weight substantially in the last few years as a result of sleepless nights and not having time or energy to exercise”.

41. The Care Act says the Council must also consider the carer’s activities beyond their caring responsibilities and the impact of caring upon those activities. The Council failed to do this.
42. In its complaint response the Council accepted it was at fault and apologised to the family. The Council said it would carry out a carer’s assessment. These were completed in August 2019 and reviewed in September 2020.
43. The Council’s failure to assess Mr C’s parents as his carers meant their needs were not understood. They were denied the additional support they needed and suffered additional distress and pressure.
44. In addition to the Councils remedies I recommend a financial payment in recognition of the distress it caused Mr C’s parents.

Failure to provide holiday funding

45. The Council did not uphold this part of Mrs B’s complaint. It says it no longer provides this type of funding and said Mr C should self-fund from his benefits.
46. In response to my enquiries the Council says this decision was made at the panel in December 2018. I disagree. The panel did not agree the funding but the notes say this decision was “pending” not final. In response to the panel decision Mrs B emailed:

“As discussed, Mr C’s care hours have been approved - we are very thankful for this. At this point in time the one-off payments have not been approved, pending the results of Mr C's benefits assessment. Once this assessment has taken place, the panel will reconvene and re-consider the one-off payments taking into account the availability of other benefits payments”.

47. From my review of the emails and minutes this is also my understanding of the decision making about the one-off holiday payments. However, in the panel meeting notes from August 2019 there is no update about this. The referral for the income maximisation assessment was only made in October 2020.
48. The Care Act says in determining how to meet needs, the Council may also take into reasonable consideration its own finances and budgetary position. It may take decisions on a case-by-case basis which weigh up the total costs of different options for meeting needs. This does not mean choosing the cheapest option, but the one which delivers the outcomes desired for the best value.
49. Where there is no fault in the way a decision is made it is not for us to question the professional judgement of the Council in reaching that decision. In this case there was fault in the way the Council reached its decision. Part of the decision-making rests on the outcome of an assessment which the Council failed to obtain prior to reaching its final decision.
50. This fault means the family cannot be reassured the decision was taken correctly and this leaves them with uncertainty.

Complaint handling

51. I find fault with the Council for failing to ensure the proposed actions in its complaint response were completed.
52. The Council complaint policy says suggestions for actions will be addressed in the response and action plans will be drawn up and responsibilities assigned.
53. The Councils failure to implement all of the actions it suggested in its response meant Mrs B was put to additional time and trouble bringing her complaint to the Ombudsman. It also meant the injustice continued because the Council failed to resolve the fault it identified.

Agreed action

54. Within one month of my decision the Council agrees to:
• Pay Mr C’s parents £500 in recognition of the distress it caused them.
• Pay Mrs B £200 for her time and trouble pursuing this complaint.
• Obtain the outcome of the income maximisation assessment for Mr C. Retake its decision about providing one-off holiday payments for Mr C and be able to evidence how it reached its decision. If the Council decides to reinstate this one-off payment it should back date this to March 2018.
55. Within two months of my decision the Council agrees to:

1. Review its procedure for ensuring actions suggested in ASC complaints are completed.
2. Remind all relevant staff of the importance of meeting the Care Act requirements for care plan assessments and reviews for both service users and carers.

56. The Council should provide the Ombudsman with evidence it has completed the above actions.

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Final decision

57. I find fault with the Council causing injustice. The Council agrees actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman