Decision : Upheld
Decision date : 08 Jun 2021
The Ombudsman's final decision:
Summary: Ms B complains the Council has not put in place adult care services for her or her son, Mr C. The Council did not support Ms B to access the services she wants and it will now do so. However, the Council appropriately supported Mr C.
- Ms B complains that in February 2019, she moved to the Council’s area. However, since this point neither she nor her son, Mr C, have received the services they need. Ms B wants the Council to take responsibility for Mr C as she is unable to continue to provide the support he needs. Further, Ms B has asked the Council to agree a budget for a personal assistant. However, the Council insists she use an agency which is not appropriate.
The Ombudsman’s role and powers
- 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 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)
How I considered this complaint
- I have considered a complaint Ms B made over the telephone and I have discussed the matter with her. I have asked the Council to comment on the complaint and considered its response with supporting documents, including Ms B and Mr C’s assessments.
- Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
- 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. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. 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.
- Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
- The gateway to receiving a direct payment must always be through the request from the person. Local authorities must not force people to take a direct payment against their will. It should not place people in a situation where a direct payment is the only way to receive personalised care and support.
- Local authorities must tell the person during the care planning stage which of their needs direct payments could meet. However, local authorities must consider requests for direct payments made at any time, and have clear and swift procedures in place to respond to them.
- After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the local authority must decide whether to provide a direct payment. In all cases, the local authority should consider the request in as timely a manner as possible. The local authority must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should provide the person making the request with written reasons to explain its decision. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)
- Ms B complains in her own right and on behalf of Mr C. Mr C has given written consent for Ms B to complain on his behalf. I am therefore satisfied Ms B is a suitable representative for Mr C.
- In February 2019, Ms B and Mr C moved to the Council’s area. The Council completed an assessment for Ms B the same month. The assessment recorded:
- Ms B had been diagnosed with several conditions.
- Mr C was in a residential placement at college.
- Ms B previously used a direct payment to commission her own care but the Council would need to reassess this.
- It was unable to discuss Mr C’s assessment with Ms B without consent as Mr C was now and adult.
- Ms B’s allocated worker, Ms D, visited Ms B throughout February 2019. It also funded Ms B’s previous care package through a direct payment and commissioned support, until it could assess her care needs.
- In April 2019, it discussed direct payments with Ms B but she was unable to think about this matter at the time. However, the response confirmed it was pursuing finding Ms B a personal assistant who would be funded using direct payments.
Ms B’s needs
- There was some delay in the Council arranging the commissioned package. However, the delay appears to have happened because Ms B was not sure whether she would accept care services in the event she had to contribute financially. There is therefore no evidence of fault here.
- I have seen evidence that Ms B began requesting her own personal assistant in March 2019. However, the Council instead put commissioned care in place using an agency. I have not seen evidence it pursued Ms B’s preferred option for care – a personal assistant using direct payments. While the Council must provide interim care, it is not clear why the Council appears to have continued to arrange Council-commissioned care when Ms B consistently maintained her preference for a personal assistant. This is evidence of fault.
- The care Ms B has received was not by way of a personal assistant, which is what she has requested since at least March 2019. Therefore, Ms B has suffered an injustice in not being able to access the type of care she wants.
Mr C’s needs
- Ms B made it clear in her complaint to the Ombudsman that she wishes to complain about adult care services for Mr C. She does not want my investigation to look at the provision of any children’s services for Mr C.
- Mr C’s college had an agreement with him relating to punctuality and attendance for classes. His EHCP provided for this by way of support to prompt him to attend classes in the mornings. This support does not appear to have worked and Mr C was excluded as a result of his failure to comply with the agreement he had with the college.
- The Council’s social care needs assessment in August 2019 concluded the support Mr C needed at college would be provided informally. However, I have seen evidence the support was included in the EHCP. Further, the college has outlined the support that was in place for Mr C. Therefore, I cannot conclude the Council failed to put in place services to support Mr C in college. It was entitled to take into account any support Mr C had in his adult social care assessment.
- While I realise it is frustrating for Ms B that the college placement broke down and Mr C returned home, I cannot conclude this was the Council’s fault. Mr C signed the Agreement and therefore undertook to comply. The EHCP and college provided clear support for him to do this.
- The Council will support Ms B to recruit a personal assistant.
- The Council appears to be at fault in failing to support Ms B to recruit a personal assistant. However, it appears to have properly assessed Mr C’s adult social care needs.
- The Council will support Ms B to recruit a personal assistant. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman