Summary: Mr B complained on behalf of his brother Mr D and their parents, about matters affecting Mr D’s social care since Mr D turned 18. We upheld most of Mr B’s complaints. The Council accepted our recommendations, so we have completed our investigation.

The complaint

1. The complainant, whom I shall call Mr B, complains on behalf of his brother (Mr D) and their parents (Mr and Mrs Y). He says the Council has not provided proper care and support for Mr D. Specifically, he complains about the Council’s failure to:
1. arrange a transition from children’s services to adult services;
2. make professional referrals for assessment and care services;
3. respond to the family’s request for care services;
4. conduct a thorough needs assessment;
5. produce a lawful care and support plan addressing all of Mr D’s eligible needs;
6. provide support to meet all of Mr D’s eligible needs; and
7. appoint an advocate, when it was clear that there had been some difficulties in the family’s understanding of the situation.
2. Mr B says the Council’s failure to provide enough support put his family under physical and emotional strain.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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) If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We may decide not to start or continue with an investigation if we have good reasons, for example if we consider there is not enough evidence to reach a robust decision. (Local Government Act 1974, section 24A(6))
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. We may investigate complaints made on behalf of someone else if they have given their consent. We may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if we consider the complainant to be suitable. (Local Government Act 1974, sections 26A(1) and 26A(2), as amended)
8. If we are satisfied with an organisation’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

9. The complaint is about matters that happened more than a year before Mr B complained to us. Some of the issues happened more than a decade ago. We decided to investigate events going back to 2007 for the following reasons:
• section 26B of the Local Government Act 1974 defines “the permitted period” relevant to this complaint as the period of 12 months beginning with the day on which the person affected (my emphasis) first had notice of the matter;
• Mr D, who is the primary person affected, does not have the mental capacity to understand the issues relating to his complaint, and has not had capacity since the issues began. We therefore consider Mr D has not “had notice” of the complaint issues;
• Mr B was aware of the issues for more than a year before complaining to us on his brother’s behalf. However, the time restrictions in section 26B do not apply to those complaining on behalf of others, unless the person affected has died;
• therefore, the complaint on behalf of Mr D is not ‘late’;
• we have also considered whether to use our general discretion to discontinue the investigation, because there was a concern we may be unable to carry out a robust and fair investigation into matters that happened so long ago. However, Mr B told us he had about 500 pages of records from the Council, which he believed supported his complaint that the Council had acted with fault. We also have access to versions of relevant laws and guidance that were in force at the time. We therefore considered there was a possibility that there could be enough evidence to reach a view on the complaint, despite the passage of time;
• we therefore decided that we could and should investigate the complaint made on behalf of Mr D for the full period complained of;
• Mr and Mrs Y are also “affected” as they claim to have suffered injustice as a result of the matters they complain about. They were aware of the matters more than 12 months before they complained to us. The complaint made on their behalf is therefore late;
• the complainants have not provided any reasons why it would not have been reasonable for Mr and Mrs Y to have complained to us sooner. Our usual approach is not to investigate late complaints in such circumstances. However, we must not fetter our discretion and must consider each complaint on its own merits. In this case, we considered that, as we were going to be looking at the same documentary evidence, law and guidance, it would be reasonable to also consider whether any fault caused injustice to Mr and Mrs Y;
• we therefore decided to exercise the discretion available to us and investigate the complaint made on behalf of Mr and Mrs Y for the full period complained of.
10. We have considered:
• information the complainant has provided by telephone and in writing;
• a bundle of records the complainant obtained from the Council;
• the Council’s responses to our enquiries and supporting documentary evidence; and
• relevant law, guidance and policy, referred to below as appropriate.
11. We have carefully considered all the written and oral evidence submitted to us, even if we do not mention specific pieces of evidence within the decision statement.
12. Mr B and the Council have had an opportunity to comment on a draft version of this decision. I took all comments into account before reaching a final decision.

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What I found

Relevant law and guidance

Mental Capacity

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
14. The Mental Capacity Act 2005 created the role of the Independent Mental Capacity Advocate (IMCA). Councils may instruct an IMCA to support someone who lacks capacity to make decisions about care reviews, where no-one else is available to be consulted.

Human Rights Act

15. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to respect for private and family life (Article 8). The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
16. Article 8 includes the right to take part in social and leisure activities. Public authorities can interfere with people’s Article 8 rights in limited circumstances. Any interference must:
• be lawful;
• be in pursuit of a legitimate aim;
• be no more than necessary to achieve the intended objective; and
• not be arbitrary or unfair.
17. The Ombudsman’s remit does not extend to making decisions on whether a council has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether a council has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

Social care services to April 2015

18. The following laws were relevant between 2008, when Mr D turned 18, and April 2015, when the Care Act 2014 came into force.
19. The Children Act 1989 says councils must keep a register of disabled children living in their area.
20. Section 5 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (DPA 1986) (as amended 1992, 1993, 1996 and 2001) says that, where a disabled child with a statement of special educational needs is about to stop being of compulsory school age or leave school, or has left education already:
• the local education authority must issue a notice to the local social care authority (in Mr D’s case, the Council is both); and
• the local social care authority must assess the person’s needs within five months of the notification.
21. Section 47 of the National Health Service and Community Care Act 1990 (NHSCCA 1990) says that, where a council considers a person may need its social care services, it must:
• assess the person’s needs for those services; and
• decide whether to provide them.
22. Section 47 of the NHSCCA1990 places a duty on councils to assess the needs of any person in their area who may need community care services. Councils have a further duty to decide what services they should provide to meet a person’s needs based on the results of the assessment. Some needs may be eligible for social care funding, some needs may not. The Council must provide services for eligible needs but does not have to provide services to meet others.
23. The Carers (Recognition and Services Act) 1995 says councils must:
• tell carers of their entitlement to a carer’s assessment (section 2B);
• carry out a carer’s assessment if a carer requests one (section 1); and
• take the assessment, including the sustainability of the caring role, into account when deciding whether the cared for person’s needs are eligible for services.
24. The Carers (Equal Opportunities Act 2004) places a duty on councils to:
• ensure that all carers know that they are entitled to an assessment of their needs;
• ask about a carer’s daily activities when undertaking an assessment; and
• work with other councils and/or education, housing and health service authorities to ensure better support for carers.
25. The Government introduced the Fair Access to Care Services (FACS) framework and associated statutory guidance in 2003. It updated the guidance in 2010. Councils must follow statutory guidance unless they have good reasons to depart from it. In summary, the FACS guidance relevant to this complaint until April 2015 says that:
• councils should determine their local criteria for social care eligibility using a framework of four bands which describe the seriousness of the risks if needs were not addressed. The four bands were ‘critical’, ‘substantial’, ‘moderate’ and ‘low’;
• councils should have arrangements in place to prevent young people from being disadvantaged by the transition from children’s to adult services. They should start transition while the child is still in contact with children’s services and assess the needs of carers as part of transition planning;
• one of the purposes of a carer’s assessment under the 1995 Act is to consider the impact of the caring role on the carer’s commitments or aspirations for work, education, training or leisure;
• after an assessment, councils have a duty to consider whether or not to provide services to the carer;
• while councils had a duty to consider (my emphasis) providing services to carers, they had the discretion to decide whether or not to provide them;
• adults who lack capacity to make decisions about their own care may need extra support during assessment and care planning. This could include access to an IMCA;
• after assessment, councils should produce a written record of the support plan;
• councils should provide support promptly once they have agreed to do so. Where waiting is unavoidable, they should ensure alternative support is in place to meet eligible needs; and
• councils should review support plans regularly and at least annually, record the outcomes of reviews, and update support plans accordingly.
26. Councils have a duty to decide whether to provide or arrange community care services based on their eligibility criteria. If a person’s assessed needs meet a council’s eligibility criteria it has a legal duty to provide enough support to meet assessed eligible needs. Each council can set its own threshold in accordance with statutory guidance, Putting People First, which sets out an eligibility framework for all adult social care services (FACS). Eligible needs are graded into four bands: critical; substantial; moderate and low, indicating the level of risk attached to each need if not addressed. Councils should take their available resources into account when setting these eligibility criteria as once a need is identified as eligible, the Council must ensure that need is met.

Adult care services from April 2015

27. The Care Act 2014 sets out councils’ responsibilities to assess the needs of adults in their area. An assessment identifies an individual’s needs, how they impact on their well-being and the outcomes the person wants to achieve in day-to-day life.
28. Councils must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether the council thinks the individual has eligible needs or their financial situation. Councils must consider all the adult’s care and support needs, regardless of any support provided by a carer. They must involve the adult, their carer if they have one, and anyone else the adult asks to be involved or who has an interest in their welfare.
29. An adult’s needs are eligible when they arise from physical or mental impairment or illness; the adult cannot achieve two or more specified outcomes because of those needs; and there is likely to be a significant impact on the adult’s wellbeing.
30. The specified outcomes include the following.
• Managing and maintaining nutrition.
• Maintaining personal hygiene.
• Managing toilet needs.
• Being appropriately clothed.
• Being able to make use of the 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.
31. Where a council chooses or has a duty to meet an adult’s needs for care and support, it may do so by making direct payments. Councils must be satisfied the person can manage the direct payment and should take all reasonable steps to provide help and support to people to manage the direct payment. Councils often have arrangements with other organisations to provide this service.
32. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
33. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)
34. An adult with possible care and support needs or a carer may choose to refuse an assessment. In these circumstances councils do not have to carry out an assessment. Where a council identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult’s best interests, it must do so.
35. The Care Act 2014 gives councils 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 council must involve any carer the adult has. The support plan must 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.
36. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
37. Section 4 of the Care Act 2014 says councils must provide information and advice about care and support for adults and carers, including:
• how the adult social care system in the area works; and
• available choices and how to access care and support.
38. The information must be accessible and enough to enable people to make plans for meeting care and support needs that may arise.
39. Section 67 of the Care Act 2014 says that in some circumstances, councils must arrange for independent advocate support when carrying out needs and carers’ assessments, and preparing or revising care and support plans. This applies when:
• a person would have “substantial difficulty” understanding relevant information; and
• there is nobody else who is appropriate to represent the person.

A – transition from children’s services to adult services

What happened

40. Until the age of 18, services for children and young people are provided by children’s social care, child health services and education. Around age 16 to 18 the young person will start a “transition” to adult services.
41. Mr D is the eldest of Mr and Mrs Y’s seven children. He has cerebral palsy and a learning disability and needs daily care. At the time he was approaching adulthood, his parents met all his care needs while he was in the family home. They also cared for his younger siblings, one of whom (Mr C) is also disabled, and his elderly grandmother. Mr D received some social services and special educational needs support from the Council as a child. He attended a local school for children with severe learning difficulties. Mr D turned 18 in early 2008. Mr B, the complainant, is Mr D’s younger brother and was 14 in 2008.
42. In April 2007, when Mr D was 17, his children’s services social worker sent a letter referring him to adult care services. Children’s services referred him again, by letter and telephone call, in August 2007. Children’s services followed up the referral with telephone calls in October and December 2007. By December 2007, the Council had allocated an adult care services social worker to Mr D, but had not yet assessed his needs for care and support as an adult. Following another referral from children’s services, the Council arranged a home visit to see Mr D in late March 2008. When the social worker and an interpreter visited, Mr Y asked them to visit in a few weeks as there had been a family bereavement. They agreed.
43. The social worker and an interpreter visited again in late April 2008. Mr Y initially asked them to come back another time as he was going out, but then agreed to have a conversation with them. The Council’s record says he told the social worker the family did not “require any assistance addressing [Mr D’s] personal care or daily living needs they only want day care activities during the school holidays” as Mr D was still attending school but got bored during the holidays. The social worker said he would need to return to complete the assessment. Mr Y agreed to another visit in two weeks’ time.
44. The Council wrote to Mr and Mrs Y in July 2008. The letter asked them to contact its learning disability team if they wanted support for Mr D. It said:
• the social worker had tried to contact them to do an assessment several times, without success;
• the Council would close the case if they did not make contact within 14 days; and
• they could contact the Council in the future if they needed to.

Was there fault causing injustice?

45. There was no fault by the Council’s children’s services, which:
• referred Mr D to adult care services in good time, about eight months before he turned 18; and
• followed up the referrals until adult care services confirmed they had allocated a social worker to Mr D.
46. The Council’s adult care services took about eight months to act on the referral and allocate a social worker, and another three months to arrange a home visit for an assessment. This was too long. By this time Mr D was already an adult.
47. In March and April 2008, the Council did try to assess Mr D’s needs but Mr Y postponed the assessment twice and did not respond to the social worker’s attempts to contact him.
48. Regardless of the Council’s difficulties in contacting his parents, the Council had a duty under section 47 NHSCCA 1990 to assess Mr D’s needs for social care when he turned 18 because it was aware of his need for care and support. The documentary evidence we have seen contains nothing to support the view the Council had:
• considered Mr D had made a capacitated decision to refuse an assessment; or
• concluded after proper consideration in line with the Mental Capacity Act 2005 that Mr D lacked capacity to decide about an assessment, and assessing his needs would not be in his best interests.
49. It was fault for the Council to close Mr D’s case simply because it had difficulties contacting his parents.
50. Based on the available information, on balance of probability, the faults in transition from children’s to adult services did not cause Mr D a significant injustice, for the following reasons:
• he was in school until July 2009, where he would have had opportunities for social interaction as well as having his personal care needs met;
• at this stage, his parents were only seeking day care facilities during the holidays to avoid Mr D being bored; and
• all the available records indicate Mr D was very well cared for at home by his parents, who met all his needs for personal care.
51. The available information indicates Mr Y was aware that support with caring for Mr D may be available subject to an assessment, and could engage with the assessment process but did not do so at the time. My current view is therefore that the Council’s faults were not the only or main cause of Mr Y’s injustice.
52. There is not enough documentary evidence for us to take a view on any injustice to Mrs Y, and recollections alone are not reliable enough 14 years after the event.

B – professional referrals for assessment and care services

What happened 2007 – June 2018

53. There is nothing in the evidence we have seen indicating the Council made referrals to other organisations outside the Council for services for Mr D, other than securing him day centre places after it assessed his social care needs (see sections C-G below). However, there is also no indication that the Council should have referred Mr D to other organisations during this period. Records also indicate that the Council organised for an independent support services provider (Provider X) to help Mr D’s family manage direct payments from 2016, but that this support was not used at the time.

What happened from July 2018

54. The Council reintroduced Provider X to Mr B in late 2018. Provider X started providing support in 2019. The Council also referred Mr B to a local organisation providing support for unpaid carers (Partnership X) as well as a charity supporting people with a learning disability in late 2018.
55. The Council referred Mr and Mrs Y to Partnership X in late 2019. Around the same time, it gave them details of community resources for carers.
56. In 2020, Mr B told the Council he was having problems with Provider X and asked it for details of similar organisations. The Council provided the information promptly.

Was there any fault causing injustice?

57. The records we have seen indicate the Council made referrals to other organisations when appropriate. There is no indication the Council missed referring Mr D or his parents to other organisations when it should have done so.
58. We have therefore found no fault in this part of the complaint. Our views on the way the Council dealt with its own duties regarding assessment and care services for Mr C are set out in section C-G below.

C to G – family’s requests for care services; needs assessments; care and support plans; support to meet eligible needs; advocacy support

What happened August 2009 – June 2018

59. The following is a summary of key events. It does not include everything that happened.
60. In August 2009, the Council’s ‘transition brokerage service’ sent an urgent referral for transition support, including support with day activities and attending college in September. The referral said “Previous assessment failed due to lack of understanding by [REDACTED]. Now have [REDACTED] transition worker to act as interpreter & to help [REDACTED] engage. Regarded as urgently requiring assessment.” The Council redacted this record before sending it to Mr B in response to a subject access request in 2019. The Council no longer had this record when it responded to our enquiries in 2022. I consider it more likely than not that the redacted parts refer to one or both of Mr D’s parents and their ability to communicate effectively in English. The Council accepted the referral but did not act on it at the time.
61. A charity for people with a learning disability contacted the Council in September 2009 to say Mr D would be attending college three days a week and needed an assessment for support with going to college and on days he was at home. The charity chased the Council in October stating that Mrs Y was struggling and had seven other children at home. The Council had a conversation with Mr Y about a week later. Mr Y said he only wanted help with equipment and the family could meet all Mr D’s other needs. The Council and a worker from the charity agreed in November to do a home visit to explain options to the family. The Council then completed a detailed assessment of Mr D’s needs in January 2010. It considered Mr D:
• had substantial or critical needs in all domains except those relating to maintaining relationships and accessing education; and
• needed 47 hours per week of support (five hours a day when not in college, nine hours a day when in college).
62. A Council record from November 2010 notes there was no progress on a budget application resulting from the assessment, which had been with management since July.
63. In May 2011, the Council arranged a further home visit as its budget panel had requested a new assessment, since the last one was more than a year old.
64. In late June 2011, the Council’s social worker made a joint visit with an interpreter. Mrs Y was not there so the social worker made another appointment. The Council’s records say the interpreter commented that Mr Y communicated well in English during the visit.
65. In early July 2011, the Council arranged another home visit with an interpreter present. Mrs Y was not at home again. The social worker asked Mr Y to get in touch to make another appointment. Mr Y called the Council in late September to re-book the appointment. There is no record of what happened but given the time that has passed, it is possible there was a follow-up and the records no longer exist.
66. In November 2011, a carer support worker reported to the Council that Mr D was not involved in any activities since his college ended. The following month, the Council wrote to Mr Y asking him to arrange an appointment for an assessment.
67. In January 2012, the Council wrote to Mr D saying his case will be closed if he did not respond within two weeks. The Council closed his case at the end of January.
68. Mr D was in receipt of a Blue Badge (a scheme which helps disabled people park closer to their destination) from 2012.
69. In September 2012, Mr Y and Mr B (who only turned 18 in 2012) asked the Council to assess Mr D and Mrs Y as his carer, as well as for help with sorting out further education. Mr B followed this up with a request for an urgent assessment in October.
70. The Council’s adult transitions team started an assessment in December. The Council’s records says that at the time, Mr D was in the ‘critical’ eligibility banding category with a start date of 27 January 2010.
71. The Council’s records indicate either Mr Y or Mr B chased the Council regarding the assessment in early January 2013. The Council advised them Mr D was on a waiting list for a social worker. It allocated a social worker to his case later that month.
72. After unsuccessfully trying to contact Mr Y by telephone, the new social worker wrote to Mr D in mid January asking him to make contact so the Council could carry out an assessment.
73. In early March 2013, the Council booked a home visit for April. It contacted Mr Y on the day of the visit to remind him of the assessment. Its record says Mr Y told the social worker he was going out and could not say when he wanted the social worker to visit. Later in April, the Council had a telephone conversation with Mr Y about college for Mr D.
74. In June, the Council sent another letter stating it would close Mr D’s case if it had no contact. It closed his case in July 2013 on the grounds “person declined services”.
75. In March 2014, a local hospital’s accident and emergency (A&E) department raised a concern about the family not being able to cope with caring for Mr D at home in terms of meeting his needs to access the community. The hospital noted that Mr D was becoming frustrated and hitting himself when unhappy. The Council decided this was a care management rather than a safeguarding issue and recommended the hospital referred Mr D for a social care assessment. There is no record of a referral from the hospital.
76. Mr D left college in April 2015. In early September 2015, Mr B asked the Council for help with securing a new college place for at least four days a week for Mr D as his previous college could no longer offer him a place. Mr B also asked for respite provision.
77. The Council assessed Mr B’s needs in September and decided his needs could be met by attending a day centre Mondays to Thursdays. The assessment document does not state how the Council considered whether the care and support Mr and Mrs Y were providing outside of the proposed day centre days and times was sustainable given their age, medical conditions, and other caring responsibilities. The Council did not offer carers’ assessments to Mr and Mrs Y. The Council issued a support plan for Mr D stating that he should attend DC1 four days a week and that he needed a taxi service to access DC1.
78. DC1 placed Mr D on a waiting list for a place in October 2015. Mr D started attending on Mondays and Tuesdays from November 2015, as places were only available on those two days at the time. Mr D started attending DC1 four days a week from January 2016. Council records state Mr D was still on a waiting list for transport to DC1 at this time.
79. At a review meeting in January 2016, the Council concluded the existing provision of attending DC1 Monday to Thursday met Mr D’s needs. Mr B said he would like Mr D to attend DC1 on Fridays as well. DC1 had no spaces on Fridays at the time and the wait for a vacancy was likely to be long. The Council told Mr B that he could contact it for a reassessment if a vacancy become available. The review document does not state how the Council satisfied itself Mr D’s needs were being met at home Friday to Sunday, or that Mr and Mrs Y’s caring roles were sustainable.
80. In late May 2016, Mr B contacted the Council to ask for a day centre place for five days a week as Mrs Y was struggling on Fridays. He also told the Council transport was still not resolved. The Council noted the situation was urgent due to a risk of carer breakdown. The Council sent Mr B information about making a complaint in June 2016.
81. The Council started an assessment in August 2016. A few days later, a place became available at another day centre (DC2) on Fridays. Transport was still not available. The Council approved the place at DC2 at the end of August. From late 2016, Mr D received direct payments to enable him to pay for his care and support needs. Mr B managed the direct payments for Mr D.

Was there fault causing injustice in the period August 2009 to June 2018?

82. The Council was aware that Mr D may have had needs for social care support, and lacked capacity to decide about his care and support. It therefore had a duty to assess his care and support needs, unless it was in his best interests not to. Without considering Mr D’s best interests, the Council delayed assessing his need for care and support as an adult until January 2010. That delay was fault. It then failed to put in place any care and support for Mr D despite deciding his needs were in the ‘critical’ eligibility band.
83. While there is evidence Mr Y refused services and did not engage with offered assessments, it was wrong of the Council to rely on this to close Mr D’s case without considering what was in Mr D’s best interests. Mr Y did not have power of attorney for health and welfare and was not authorised to make decisions about Mr D’s health and welfare. It was open to the Council to instruct and consult an IMCA, following any required mental capacity assessment, if it could not get the information it needed from Mr D’s parents.
84. The Council repeated these faults of delay and/or closing Mr D’s case in 2011, 2012 and 2013.
85. In addition, the Council failed to act on Mr B’s request of September 2012, for an assessment of Mrs Y as Mr D’s carer. However, the Council had assessed Mr D needed 47 hours of weekly support to meet his eligible needs from January 2010. The Council’s failure to provide this support resulted in Mr and Mrs Y providing more informal care for significantly longer than they should have reasonably expected to. This is likely to have placed them at risk of carer’s strain or breakdown.
86. The Council also failed to assess Mr D’s needs after a safeguarding alert by a hospital flagged up in March 2014 that Mr D’s care needs were not being fully met at home.
87. The Council did not consider appointing an independent advocate for Mr D at any point between August 2008 and June 2018. This was fault because the Council was aware that:
• Mr D lacked capacity to make decisions around his social care;
• his parents would not or could not meaningfully engage in needs assessments and care planning; and
• there was nobody else who could represent and support Mr D until Mr B became old enough to take on that role.
88. When the Care Act 2014 came into force in April 2015, the Council had a duty to provide accessible and adequate information about adult social care services to people eligible for support and their carers, such as Mr and Mrs Y. It did not ensure Mr and Mrs Y had enough accessible information. The Council also had a duty to re-assess Mr D’s care needs and offer carers’ assessments to his parents, since it was aware from previous assessments that he may have needs for care and support. It failed to do so, which was further fault.
89. The Council acted without delay in assessing Mr D’s needs for care and support following Mr B’s request in September 2015. However, it did not ask Mr Y whether he wanted a carer’s assessment. This was fault. The Council’s assessment record indicates it relied on information from Mr B to conclude Mrs Y did not want a carer’s assessment, rather than asking her directly. These too were faults.
90. The Council decided Mr D needed day centre provision four days a week from September 2015, but he did not receive any provision until November 2015, and then it was only two days a week. While the Council could not control the vacancies at DC1, it could and should have considered whether it was in Mr D’s best interests to source alternative provision while waiting for vacancies. Failing to do this was fault. Mr D did not start attending DC1 four days a week until January 2016. The Council also failed to provide Mr D with transport to DC1, despite this being part of his care and support plan.
91. The Council recognised there was an urgent need to review or reassess Mr D’s care and support in May 2016 because of a risk of carer breakdown. However, it took three months to start the assessment. This delay amounts to fault because of the urgency of the situation.
92. There is no indication the Council properly considered Mr D’s Article 8 rights despite being told by several different people that his needs for social interaction were not being met. This was also fault.
93. Until April 2015, some of Mr D’s needs to participate in social activities are likely to have been met through attending school and college. There is also no dispute that his parents were meeting his physical care needs well at home. However, the many missed opportunities to assess and meet his needs and the needs of his parents as carers during this period mean there is uncertainty about whether, but for the Council’s faults, they may have received more support.
94. The injustice to Mr D is significant between April 2015, when he stopped attending college, and January 2016, when he finally started attending DC1 for four days a week. While records indicate he was physically well cared for at home and at the heart of a caring family, they also show the lack of social activities outside the home in that period meant he was sometimes stuck in his room, screaming and hitting his head in frustration. The Council’s failure to promote Mr D’s wellbeing and independence during this period is therefore likely to have had a substantial and long-term adverse effect on his need to forge friendships and participate in social, cultural and leisure activities. It also caused him avoidable distress.
95. The records indicate that Mr Y was reluctant to engage with social services, even when the Council arranged for an interpreter to help communicate with him. We therefore consider his own actions contributed to any distress and inconvenience he may have suffered until September 2015. There is no indication Mr Y resisted engaging with social services from September 2015, yet the Council did not engage with him despite its duties under the Care Act. This means Mr Y lost the opportunity to have his needs as a carer assessed then.
96. According to the Council’s records, Mrs Y provided most of Mr D’s day-to-day care, yet the Council had not:
• spoken or corresponded directly with her to ascertain her views, wishes and needs as a carer;
• confirmed that she consented for Mr Y and later Mr D to speak on her behalf; and
• assessed her needs as a carer when asked.
97. Mrs Y therefore lost the opportunity to have her voice heard and her needs assessed, over many years. There is now an uncertainty about whether she should have received support earlier if the Council had acted without fault.
98. The Council’s failure to put transport to DC1 in place after identifying it as a need in September 2015 meant Mr D’s parents had to step in to take Mr D there. While this did not cause Mr D an injustice, it was an additional task and expense which his parents should not have had to undertake.
99. We have recommended remedies at the end of this draft decision statement.

What happened from July 2018

100. Mr D received direct payments for a personal assistant to support him for five hours a week. The Council arranged for an organisation to support the family manage the direct payments, but they did not use the service. The Council paid for Mr D to attend a day centre five days a week.
101. In July 2018, occupational therapists carried out a joint assessment of Mr C and Mr D. Mr D’s assessment recommended the following was provided:
• bathroom adaptations through a Disabled Facilities Grant (DFG); and
• stair rail.
102. Mr D’s therapist said an engineer should consider whether the family’s step lift needed to be replaced; it was fixed in June 2018. The Council agreed to provide a stair rail to help Mr D get up steps and made a DFG application in Mr C’s name for the bathroom adaptations.
103. The occupational therapy service also assessed Mr D’s mother and father. Mr B supported his parents during the assessment and reported that caring for Mr D was worsening his father’s joint pain and the strain on his spine. The therapist decided the planned adaptations to the family home would lessen some of this strain.
104. The Council’s community opportunities review team wrote to Mr D’s carers between May and August 2018 to arrange a review of Mr D’s care plan and direct payments. It held a review meeting between Mr B, Mr D’s day care centre manager, Mr D’s key worker and his social worker in September 2018. The Council’s review confirmed that Mr D needed support with all outcomes listed in paragraph 30. Mr D’s family asked the Council for regular breaks so they could continue to care for Mr D at home. The Council completed its assessment in October 2018 and made no changes to Mr D’s care package. The Council sent the family a copy of the assessment.
105. The contractor the Council uses to provide equipment reviewed the family’s step lift in October 2018. It fixed the problems it found, leaving the step lift in working order.
106. Mr B told the Council Mr D’s care package was not working. The Council’s community opportunities review team reassessed Mr D’s and his family’s needs in November 2018. Mr B explained that he was worried the family would not be able to cope much longer. The review team developed a new support plan for Mr D and increased his direct payments to pay for an extra 25 hours of personal assistant support a week and for 28 short breaks a year. The new care plan was to start at the end of December 2018.
107. The Council reviewed Mr D’s direct payments and told the family that they had not used any direct payments since July 2018 and Mr D’s contribution had not been paid into the account. Mr B said he had not been told how to use direct payments. The social worker explained how direct payments worked and noted that Mr B was in contact with an organisation that supports people to manage direct payments.
108. The review team made an urgent referral to the carer’s hub to arrange a carer’s assessment for Mr B and for an advocate to be assigned to the family. It sent the family a copy of the new assessment and asked for comments.
109. Mr B contacted the Council in January 2019 because Mr D had not received the increase in direct payments. The review team arranged for the increase to be paid before the end of the month and to be backdated to the end of December 2018. Mr B said it should be backdated to the day of Mr D’s reassessment in November 2018. The Council told Mr B to provide records of any payments the family had made for the care of Mr D and it would consider adjusting the start date for the increase.
110. Mr B made a referral to occupational therapy for his parents in January 2019 because he was concerned about the impact of manual handling Mr C and Mr D on Mr and Mrs Y’s health. An occupational therapist was assigned to the case, but the service found it difficult to arrange a home visit. The service wrote to Mr B in March 2019 to ask if he still wanted the assessment to go ahead. Mr B asked the occupational therapy service to reassign Mr D because he was unhappy with the therapist’s communication. The service fulfilled Mr B’s request and the assessment was completed in April 2019. It did not identify any problems with Mr D’s parents manual handling and decided concerns about the suitability of the property would be addressed as part of the DFG.
111. The review team sent Mr B a list of community organisations he and his family could access for help and support. The team asked if he would like them to contact any of the organisations on his behalf.
112. Mr B commented on Mr D’s care plan in March 2019. He told the Council Mr D was not receiving any therapy (e.g. speech and language), he needed more personal assistant hours and should be able to have two personal assistants. The review team told Mr B it had considered his comments and decided the existing care plan met Mr D’s needs. Mr B said they needed an extra one to two hours support Monday to Friday and an extra twelve to sixteen hours at the weekend. The team said it remained of the opinion that Mr D’s new care package met his care needs.
113. Mr B told the Council in March 2019 if the family did not get help there was a risk of carer breakdown or injury. Mr B said the Council needed to consider Mr D’s feeding, changing and his emotional needs. The occupational therapy service assessed Mr D and recommended:
• the step lift, shower chair and level access shower were replaced; and
• the service liaise with the children’s service about the DFG and adaptations to the family’s bathroom and reception rooms.
114. In May 2019, the Council’s step lift contractor completed a feasibility report for the new step lift. After some discussion, Mr B agreed to a wall being built to enable a new step lift to be installed and to this being undertaken by one of the Council’s contractors. The Council arranged for the work to be completed in July 2019. Mr B asked for the work to be re-scheduled. The new step lift was installed in August 2019.
115. Mr B told the Council in June 2019 that it needed to increase Mr D’s care package. The Council replied that it was confident the assessment in November 2018 was accurate and the support provided met Mr D’s and his family’s needs. The Council told Mr B to contact the adult and communities access point (ACAP) if there had been a change in Mr D’s circumstances. Mr B contacted ACAP and asked for a review. The family’s advocate told the Council Mr B wanted an extra nine hours of support a week for Mr D because their parents were in poor health.
116. The family’s advocate contacted the Council in September 2019 to ask for a review of Mr D’s care package. She told the Council the family had been waiting for three to four months for Mr D to be assigned to a social worker for a reassessment.
117. Mr D’s social worker met with Mr B in October 2019. Mr B explained the family were struggling with their caring roles and there was no equipment in place to support them. He said there was a risk of carer breakdown and asked for a temporary increase in Mr D’s care package while the extension and adaptations to their property were carried out. The social worker completed a reassessment in December 2019. She increased Mr D’s personal assistant support to 40 hours a week and sent Mr B a list of community activities his parents could attend.
118. In November 2019, the occupational therapy service completed an assessment of Mr D in response to a request by Mr B. The therapist found that concerns raised by Mr B about manual handling Mr D would be addressed by the major adaptations being undertaken through the DFG.

Was there fault causing injustice from July 2018?

119. During the Council’s reassessment of Mr D between August and October 2018, Mr B told the Council his parents needed regular breaks to be able to continue to care for Mr D. This request was not considered until Mr B raised it again in November 2018. The Council reassessed Mr D and increased the support by 25 hours of personal assistant support a week and 28 short breaks a year. The Council should have considered Mr B’s request in the reassessment that was completed in October 2018 and not doing so was fault. As the family’s circumstances did not change significantly between October 2018 and November 2018, the Council should have provided this extra support two months earlier and not doing so was fault. The family missed out on 200 hours of personal assistant support and 5 short breaks. This fault put additional pressure on the family.
120. The Council’s community opportunities review team conducted a thorough assessment of Mr D in November 2018 which considered both his and his family’s needs. The Council created a care package to meet the needs it identified. I have found no fault in how the Council’s community opportunities review team assessed Mr D and his family in November 2018 and where there is no fault in the way a council makes a decision, I cannot question the merits of the decision. This means I cannot question the content of the care package.
121. In July 2019 Mr B asked for a review of Mr D’s care needs. The Council did not carry out this review until October 2019. Although the Council’s delay was fault, it did not cause injustice because Mr B wanted extra support whilst the extension and adaptations to their property were carried out and the work had not started.
122. Each time Mr B asked for the Council’s occupational therapy service to reassess Mr D it did so. The Council reviewed Mr D’s needs and identified equipment and house adaptations that would meet these needs. The Council provided Mr D the equipment and made a DFG application for the adaptations needed to the house. I found no fault with the way the occupational therapy service assessed Mr D and I cannot question the merits of the service’s recommendations.
123. I have reviewed the communications between the occupational therapy service and Mr B. In February 2019, the service contacted Mr B by text message to try to arrange a home visit. Mr B asked the Council to email him instead. The service explained it was unable to email him but could send an appointment letter in the post. The language used by the service was professional and it offered Mr B an alternative method of communication when it was unable to fulfil his request for email contact. I found no fault with the way the service communicated with Mr B.
124. The Council provided Mr D and his family with other support as carers for Mr D. It referred them to the carer’s hub, gave them information about community organisations and made a referral to an organisation to help the family manage Mr D’s direct payments. It also recommended the carer’s hub consider providing the family with an advocate. Each time Mr B asked the occupational therapy service to assess his parents it did so.
125. As a result of the Council’s fault, Mr D and his parents were caused an injustice. The Council should have provided 200 hours of personal assistant support and five short breaks between August and October 2018. Not doing so put unnecessary strain on Mr D’s parents and Mr D’s needs were not fully met.

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Agreed action

126. As a result of an earlier investigation, the Council has already done the following:
• apologised to Mr D and his family for the faults identified in the period from July 2018;
• arranged for Mr D to have an extra 200 hours of personal assistant support; and
• arranged for Mr and Mrs Y to have an extra five short breaks.
127. We also made the following recommendations for the Council to remedy the injustice we have identified in the period from 2007 to June 2018.
128. To remedy the injustice to Mr D, the Council should make a symbolic payment of £2,500 to be used for Mr D’s benefit.
129. To remedy the injustice to Mr Y, the Council should apologise to him for the impact of the faults we have identified and pay him a symbolic sum of £200 in acknowledgement of the uncertainty and transport problems since 2015.
130. To remedy the injustice to Mrs Y, the Council should apologise to her for the impact of the faults we have identified. It should also pay her a symbolic sum of £500 in acknowledgement of:
• the prolonged period where she was deprived of opportunities to have her voice heard and her needs assessed; and
• the distressing uncertainty this creates about how the outcome for her and Mr D might have been different.
131. The Council has agreed to implement these.
132. We have not recommended service improvements as the events happened long ago, for some events under different laws, local policies and staff.

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Final decision

133. We uphold the complaints about transition to adult care services, needs assessment, care planning and support, and advocacy. The Council has accepted our recommendations. We have therefore completed our investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman