Summary: The Council was not at fault for the information it gave to Mr C and his family about social care charging before it wrote his support plan. However, it was at fault for a delay in providing one part of his support, and for failing to provide another. It has agreed to apologise, and to make a payment of £125 to recognise Mr C’s injustice.

The complaint

1. The complainant, whom I refer to as Mrs B, complains on behalf of her adult son, whom I refer to as Mr C.
2. Mr C suffered a brain injury in a car accident in 2016. Because of this, the Council assessed his needs in 2018 and provided support.
3. Mrs B complains that the Council did not tell Mr C’s family in advance that he would have to pay towards the support he received, and the first she knew about it was when he received an invoice. She says the Council should have included Mr C’s family in decision-making because his brain injury means he struggles to retain information.
4. Mrs B also complains that the support Mr C received was unsuitable. She says he was not encouraged to take part in activities at the rehabilitation centre he attended, and did not get the one-to-one support which had been offered, which meant he only attended four sessions. She also says he did not receive community independence sessions which he had been promised.
5. Mrs B says support would have been more effective for Mr C if it had been delivered sooner.

Back to top

The Ombudsman’s role and powers

6. 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)
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)

Back to top

How I considered this complaint

8. I considered information from Mrs B and the Council. Both parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should have happened?

9. The Care Act 2014 sets out councils’ duties towards adults with care needs. Care and support statutory guidance explains how councils are to meet their duties under the Act.
10. A council must carry out an assessment of any adult who appears to need care or support. If it decides they have eligible needs, it should prepare a care and support plan which sets out how it is going to meet those needs.
11. Councils have a statutory duty to meet a person’s eligible unmet needs.
12. When a council arranges care or support it may charge the person receiving it, except where it has to arrange it for free.
13. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that they lack it.

What happened?

14. In April 2018 the Council agreed to assess Mr C’s needs. He signed an agreement which said the Council would also assess how much he could contribute towards the cost of any care or support he received.
15. Shortly after this, the Council sent out a financial declaration form to Mr C’s grandmother (with whom he lives). The letter accompanying the declaration form said:

This form is required to confirm eligibility for funding from [the Council] and to calculate the contribution that [Mr C] may need to pay … Once we receive the completed Financial Declaration form we will be able to confirm the amount that [Mr C] will need to contribute towards the services received.

16. The form itself said, “[The Council] require this form to be completed so that we can calculate how much you are reasonably able to contribute to the costs of any services/care you require”.
17. In May the Council visited Mr C to assess his needs, and decided he was eligible for support. It wrote a support plan dated 15 May, which said his needs would be met by two rehabilitation days each week at a local brain injury day centre, and four hours of support each week in the community to help him regain independence.
18. During the assessment, Mr C signed an agreement which confirmed the Council had given him a ‘having a financial assessment’ factsheet. This factsheet – which the Council has also given to me – says, among other things, “We use your completed Financial Declaration form to work out how much you can afford to contribute each week to the cost of your Personal Budget”.
19. The Council’s funding panel agreed funding for Mr C’s support on 5 June. On
    29 June, the Council applied for funding for transport to and from the rehabilitation centre, which the panel agreed in early July. Mr C started at the centre on 11 July.
20. Later in July the Council wrote to Mr C’s grandmother. It said Mr C would have to contribute around £80 per week towards his support.
21. At the end of July Mr C completed the financial declaration form which the Council had sent to him in April. He included details of his income and expenses – which included a £30 weekly child maintenance payment.
22. In early August Mr C told the Council he did not want to go to the rehabilitation centre any more, because it was not suitable for him. He had attended four times.
23. At that point Mr C was yet to receive any of the community independence support set out in his support plan, because, according to the Council, there had been no capacity to deliver it. Mr C told the Council he did not want to receive any of this support either. The Council cancelled all the support at Mr C’s request.
24. After Mrs B complained about the costs of Mr C’s support, the Council agreed to take into account his child maintenance payments. This reduced his contribution to £50.30 per week for the time he was receiving support.
25. The Council told Mrs B that Mr C’s social worker had felt he was able to understand and weigh up decisions, to recognise her and understand who she was, and to explain his existing financial commitments. Because of this, she did not feel it was appropriate to question his mental capacity.
26. The Council also responded to each complaint Mrs B made about the quality of support provided to Mr C by the rehabilitation centre.

My findings

27. Mrs B’s complaint poses two questions for me to consider:
• Did the Council properly tell Mr C and his family about likely future charges?
• Did Mr C receive the support to which he was entitled?
28. The answer to the first question is ‘yes’. Mr C signed an agreement at the outset which said he would be charged, and the Council confirmed this with a letter (sent to his grandmother) and a fact sheet (given to him in person). These were all provided before the Council wrote the support plan.
29. Because of this, my view is that that the Council took proper steps to tell Mr C that there would be future costs associated with its provision of support.
30. There is an extra consideration for this part of Mrs B’s complaint, which is: did
    Mr C have the mental capacity to understand what he was being told?
31. One of the principles of the Mental Capacity Act is that a person must be assumed to have capacity unless it is established that they lack it. The Council has explained to Mrs B why, in its view, it was not appropriate to question that assumption in Mr C’s case. I have seen nothing in the Council’s records which would lead me to decide that its view was obviously unreasonable. Because of this, I cannot say the Council should have questioned Mr C’s capacity.
32. It is also worth noting that the Council wrote to Mr C’s grandmother about the financial assessment, so, even though Mr C had capacity, his family were involved in the process as well.
33. As a result, I have no reason to find fault with the Council for how it told Mr C about likely future costs.
34. However, my view on the second part of Mrs B’s complaint is that Mr C did not receive the support to which he was entitled.
35. Firstly, it was two months before Mr C’s sessions at the rehabilitation centre started.
36. Clearly, is only fair to give a council a reasonable period after writing a support plan to ensure it has the chance to commission services. However, I have not seen a good explanation why it was reasonable for Mr C to wait two months before receiving any support.
37. Secondly, Mr C did not receive any community independence support at all in the three months his support plan was active.
38. The Council said there had been no capacity to deliver the community support. I do not doubt this; however, as the Council had assessed Mr C as having eligible support needs, it was under the duty to meet them.
39. Given that the Council delayed delivery of some of Mr C’s support and failed to deliver the rest, I have found that it was at fault.
40. Mr C’s injustice from this was relatively limited. When he attended the sessions at the rehabilitation centre he did not like them, and he cancelled the community sessions before receiving any because he did not think he needed them. This is balanced by Mrs B’s view, which is that if he had received support earlier it would have been more effective.
41. I cannot say how effective the support would have been if the Council had delivered it earlier, and I cannot say that earlier delivery would have improved
    Mr C’s perception of the support (or that he would not have cancelled it anyway). So, in my view, there is no need for the Council to provide a significant remedy.
42. Nonetheless, it should apologise to Mr C and should make a small symbolic payment to recognise his distress – roughly half of what it ended up charging him for the support he received.
43. Although I note Mrs B’s complaint about the quality of the sessions at the rehabilitation centre, I cannot decide how good the sessions were. The support plan is not specific about exactly how Mr C’s day was supposed to be structured at the centre, and the Council appears to have fully responded to Mrs B’s complaint and given explanations for the various points she raised. So I do not intend to comment on this matter further.

Back to top

Agreed actions

44. The Council has agreed to write to Mr C and apologise for its delay in providing some support, and its failure to provide other support, in 2018.
45. The Council has also agreed to reduce Mr C’s outstanding care fees by £125 to recognise his injustice.
46. These actions should be completed within six weeks of this decision statement.

Back to top

Final decision

47. The Council was not at fault for the information it gave to Mr C and his family about social care charging before it wrote his support plan. However, it was at fault for a delay in providing one part of his support, and for failing to provide another. The agreed actions remedy Mr C’s injustice.

Back to top

Investigator's decision on behalf of the Ombudsman