Summary: Mr X complained the Council has not provided him with adequate help and support to deal with his care needs. We find the Council was at fault as it failed to pursue an independent assessment to determine if Mr X needed more support. It also did not have an effective process in place to monitor his support hours. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr X complained the Council has not provided him with adequate help and support to deal with this care needs. He says four hours of daily support is not enough and the Council has failed to properly assess him since he received his diagnosis in 2017. Mr X also complained the Council is not complying with the Autism Act 2009 and this is impeding his access to the services he feels he needs. Mr X says the issues he continues to have with his neighbour are causing significant distress.
2. Mr X has been supported in making his complaint to us by his representative, who I have called Ms Y.

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What I have investigated

3. I have investigated Mr X’s concerns from January 2019 onwards. I have not investigated his concerns before this date for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. 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.
8. 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)
9. Under our information sharing agreement, we will share this decision with the Care Quality Commission.
10. 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

11. I considered information Ms Y submitted with Mr X’s complaint. I made written enquiries of the Council and considered the information it sent in response.
12. Mr X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislative and administrative guidance

Care Act 2014

13. Sections 9 and 10 of the Care Act 2014 require councils 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 council 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.
14. The council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
15. Where councils have determined that a person has any eligible needs, they must meet these needs. When a council has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.
16. The Care Act 2014 gives local authorities 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 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.
17. Section 27 of the Care Act 2014 gives an expectation that councils should conduct a review of a care and support plan at least every 12 months. The council should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. As well as the duty to keep plans under review generally, the Act puts a duty on the council to conduct a review if the adult or a person acting on the adult’s behalf asks for one.

Autism Act 2009

18. The Autism Act 2009 says that there has to be a government strategy for improving services for autistic adults, and statutory guidance for councils and the NHS. The statutory guidance says councils:

• Should provide autism awareness training for all staff.
• Must provide specialist autism training for key staff, such as community care assessors.

19. Councils must also ensure that any person carrying out a care and support needs assessment of a person with autism has the skills, knowledge and competence to carry out the assessment and is appropriately trained. Where the assessor does not have experience in the condition, the local authority must consult a person with that expertise.

Statutory nuisance

20. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
21. Typical things which may be a statutory nuisance include:

• Noise from premises or vehicles, equipment or machinery in the street.
• Smoke from premises.
• Artificial light from premises

22. For the issue to count as a statutory nuisance, it must:

• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• Injure health or be likely to injure health.

23. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

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What happened

24. This summary includes key events in this case and does not cover everything that happened.
25. Mr X was diagnosed with Autistic Spectrum Condition (ASC) in August 2017. The psychiatrist that diagnosed Mr X wrote to the Council on 25 September 2017 and requested that it complete an assessment of Mr X under the Care Act 2014.
26. The Council commissioned four hours of support a day on 11 May 2018 from Options Autism Outreach Support Service (Agency A) which is a specialist autism service. Agency A agreed to help Mr X access the community and help with his shopping and appointments.
27. On 21 February 2019, Ms Y asked Mr X’s social worker (Social Worker B) for a meeting to discuss Mr X’s care assessment and care and support plan. Ms Y is Mr X’s advocate. Social Worker B had previously met with Mr X in November 2018 to discuss his assessment and care and support plan. However, Mr X became distressed during the visit and subsequently emailed Social Worker B and said he did not agree with the content of the assessment.
28. The meeting took place at Mr X’s home on 28 February. Mr X, Ms Y and Social Worker B went through the entire assessment. Mr X said the current support did not meet his needs. He said he did not need life skills from Agency A, but he was unsure of what support he needed. Social Worker B asked Mr X what his ideal package of care would be. Mr X said he did not know.
29. Mr X has had issues with his neighbour shining a security light into his property for many years. He has also had issues with his neighbour lighting his fire, which resulted in smoke blowing into his garden from the chimney. The Council’s environmental health department previously investigated these issues and concluded the light was not a statutory nuisance. It also concluded that Mr X’s neighbour’s chimney was at the highest point on his roof, he was not in breach of any regulations and therefore it could take no further action. Mr X’s neighbour said he only lit his fire for two hours a day during the winter. Mr X disagreed with this. Mr X emailed Social Worker B on 22 March and reported a further incident with his neighbour. Social Worker B agreed to visit Mr X to discuss the issues further.
30. Social Worker B sent Mr X a copy of his amended assessment to Mr X on 25 March. Mr X replied the following day and asked Social Worker B why she had not made amendments in line with what was discussed at the meeting.
31. Social Worker B sent Mr X a revised version of his amended assessment on 28 March. She noted that the level of support provided to Mr X was sufficient to meet his eligible care needs. She also noted that staff at Agency A would need to take Mr X from his home environment if his neighbour lit his fire during his support hours. Mr X replied and said he needed more than four hours of daily support to meet all his needs. He also said the Council had not dealt with the problems he was having with his neighbours.
32. Mr X, Ms Y, Social Worker B and Agency A met on 4 April to discuss the issues Mr X was having with his neighbours. Social Worker B agreed to meet with Mr X’s neighbours. She also agreed to research respite options for Mr X.
33. Social Worker B met with Mr X’s neighbour to discuss the ongoing issues with the security light the following week. Social Worker B also contacted Mr X’s other neighbour a few weeks later.
34. Social Worker B met with Mr X at the beginning of May. She explained to Mr X that his neighbour was not prepared to make any alterations to his light. Mr X said the light was affecting his quality of life. Mr X also said he did not want to move to different accommodation, but he would if it was the only option.
35. Social Worker B agreed to research light deflection screens to minimise the light. She also said she would speak to Mr X’s neighbour again and ask the Council’s environmental health department to take another look at the light at night.
36. Social Worker B spoke to the Council’s environmental health manager on 29 May. The manager suggested that Mr X could put up high hedging to block out the light.
37. Social Worker B met with Mr X, Ms Y, and his support workers on 31 May. Social Worker B explained that she had tried to speak to Mr X’s neighbour, but he was unavailable. She explained the purpose of talking to Mr X’s neighbour again was to ask if he would be willing to change his security light and the Council would pay for it. If he refused, then Mr X would be allowed to erect a fencing panel to block out the residual light. Ms Y’s notes of the meeting say the Council agreed to pay for and erect the fence.
38. Mr X’s neighbour contacted the Council and said he was not interested in its offer to change his security light.
39. Agency A supported Mr X to write a “how best to support me” care plan. The Council agreed this was the best way to engage Mr X in writing a care and support plan that he would be happy to work with. Agency A also developed its own care and support plan for Mr X.
40. Social Worker B met with Mr X at the end of June. Mr X said he lived in fear of retaliation from his neighbour and that is why he was unsure about erecting a new fence to block out the light. Social Worker B said she would arrange a meeting with the Council’s planning, environmental health, and legal department to try and find a solution. Mr X said he had looked at respite options, but he was concerned going back to his house would be difficult. He said it would give it further thought.
41. Social Worker B attended a meeting with officers from the Council’s environmental health and legal department at the beginning of July. The officer from the legal department suggested that Mr X could take legal action as a private nuisance claim against his neighbour. The environmental health team manager said the light was not considered to be statutory nuisance. It was also discussed that Mr X could erect a hedge to deal with the problem. Social Worker B informed Mr X of the proposals in a meeting on 11 July. Mr X said the proposals were not practical.
42. Mr X’s neighbour contacted the police and alleged that Mr X had damaged his fence. Mr X contacted the Council and explained he had been visited by a police officer who threatened to arrest him. The Council provided Mr X with the out of hours number for Agency A and told him to contact it if he needed any further support.
43. Social Worker B met with Ms Y and Mr X’s support worker in August 2019. All participants agreed that Mr X had not agreed to any of the proposals regarding how to reduce the impact of his neighbour’s light.
44. The police formally interviewed Mr X about the incident with his neighbour in November 2019.
45. Ms Y emailed Social Worker B at the beginning of December and asked her to confirm what level of support she could offer Mr X. Ms Y said Mr X was distressed and was struggling to cope. Social Worker B responded and suggested a meeting to discuss matters further. Mr X refused and said he did not want to attend the meeting because he did not feel anyone was listening to him. He said wanted Social Worker B to get him out the situation he was living in.
46. Social Worker B responded to Mr X. She said they could discuss respite options further, but there were no autism speciality care home/respite facilities available. She also suggested the Council could refer Mr X for an independent assessment from a specialist consultant. Mr X responded and said it was the Council’s responsibility to help with his housing situation. He said any respite options needed to be appropriate for his autism. He said he could not cope in the evenings when Agency A were not providing him with support.
47. A different social worker emailed Mr X and explained there were no autism specialist placements available. However, there were alternative residential settings which did offer respite placements within the area. He suggested a care home that could offer respite. Finally, he explained the offer of undertaking a further assessment was to identify if there was any further support available to him. Mr X responded and said he would be willing to consider all the options. However, he needed further information about the assessment. He sent a further email later that day and said the care home was not suitable for him and it was too expensive.
48. Mr X emailed Social Worker B a property he was interested in that would provide him with some respite. Social Worker B said she would get further information on the property. She sent a further email the following week and explained the Council was considering renting the property for him, but it needed to consider the legalities before it could make a final decision.
49. Mr X was arrested and charged with harassment and criminal damage in relation to his neighbour’s fence at the end of December. He was released on bail conditions. Mr X emailed Social Worker B the following day and said he needed urgent help with finding respite.
50. Social Worker B visited Mr X later day. She said he could remain at home and abide by his bail conditions. She also said he could have some respite in a care setting, or he could rent a residential property which the Council could help him with, but he would be fully financially responsible for it. Mr X said none of the options were practical or viable. He also asked why the Council would not rent the property that he had suggested. Social Worker B explained she had spoken with a manager and the Council could not rent a residential property for him, but it would fully support him in finding somewhere. Mr X said to get some respite he would consider living in a self-contained flat but not a care home. Social Worker B agreed to look at self-contained flats.
51. Social Worker B emailed Mr X on 8 January 2020 and offered him a respite placement at a care home in a self-contained flat. Mr X replied and said it was not suitable.
52. Social Worker B met with other professionals later that day to discuss how to support Mr X further. Ms Y agreed to discuss housing options further with Mr X.
53. Ms Y complained to the Council in February. She said that Mr X had been allocated three social workers over 20 months. She also said that Mr X was allocated 4 hours of support per day in 2018, but this was inadequate to support his needs. Finally, she said Mr X did not feel the Council was complying with the Autism Act 2009 and he was constantly terrified of living in his own home.
54. Mr X met with Social Worker B and other professionals on 5 March. Mr X agreed for a new social worker (Social Worker C) to be allocated to his case. Social Worker B also confirmed a review of Mr X’s care needs would take place on 27 March. Mr X said he would research what he would consider to be a suitable respite placement. Finally, Social Worker B said she would speak to the Council’s planning department to check if Mr X could erect a higher fence for his sensory needs. The planning department responded and explained Mr X would need to apply for planning permission.
55. Agency A contacted Mr X on 24 March and said it would temporarily reduce the support it was offering him to one hour per day for three weeks because of the COVID-19 pandemic. Mr X responded and said he needed the support. Agency A responded and said it needed to keep its staff safe and comply with the regulations from the government.
56. The Council responded to the Mr C’s complaint on 24 April. It accepted that Mr X had three social workers over 20 months. However, it said this was linked to Mr X’s requests for a change. It also said that Social Worker B discussed a care and support plan, but Mr X did not agree with it and therefore it was difficult to adjust the care and support he received. It also said it was unclear what any additional hours of support would achieve for him. Finally, it said it wanted to support Mr X to resolve the ongoing issues with his housing situation.
57. Social Worker C met with the police, Agency A, Ms Y, and other professionals in May 2020 to discuss Mr X’s case. It was agreed that Mr X’s case would be transferred to the mental health team.
58. The Council transferred Mr X’s case to its mental health team on 28 July. It appointed a new social worker (Social Worker D) on the same day.
59. Social Worker D visited Mr X on 11 August to complete his care assessment. She recommended that he should continue to receive four hours of support a day from Agency A. Mr X said he was still struggling with the light from his neighbour. Social Worker B advised him to purchase blackout blinds.
60. Mr X emailed Social Worker D on 24 August and said his neighbour’s light was shining through his window. Social Worker D responded and repeated her previous advice for him to purchase some blackout blinds. She sent a further email and asked for his understanding of the arrangements regarding the fence and whether he had submitted a planning application.
61. Mr X responded on the same day and said blackout blinds would not resolve the issue. He said building works to complete the repairs on his house would start shortly and therefore he could not use his garden to destress. He said he had not submitted a planning application because it should have been done by Social Worker B and C. Finally, he said he could not afford a fence.
62. Social Worker D contacted the Council’s planning department to find out whether it had agreed to pay for a new fence. The planning officer said it had discussed funding respite for Mr X while he had his house renovated but there was no agreement to pay for a new fence.
63. Social Worker D emailed Mr X on 25 August with a link to submit the planning application. She explained the Council would not pay for the fence. Mr X replied and said he was told the Council would erect the fence. He also said Social Worker C did not explain in a previous email that he would have to pay for the fence himself.
64. Ms Y raised a further complaint on Mr X’s behalf on 11 November. She said Social Worker D had not provided Mr X with a copy of his assessment from the meeting on 11 August. She also said that although Mr X was allocated four hours of support a day from Agency A, there was no cover on nearly every Sunday. Finally, she said Social Worker B said the Council would pay for a new fence and Social Worker C said he would apply for planning permission on Mr X’s behalf.
65. The Council responded to Mr X’s complaint on 20 November and apologised that Social Worker D had failed to send him a copy of his assessment. It said she had now done so. It said it had asked Social Worker D to organise and coordinate a review of Mr X’s support with Agency A to address the Sunday calls being missed. Finally, it said the issue regarding the fence was being dealt with.
66. Social Worker D contacted Mr X a few days later and told him that Agency A was closing at the end of the year and therefore it would need to find an alternative.
67. Social Worker D emailed Mr X on 4 December and said the Council had secured an agreement to pay for the fence.
68. Mr X started receiving support from a new agency in January 2021.

Analysis

69. It is not the Ombudsman’s role to decide what, if any, care and support a person needs. That is the Council’s role. The Ombudsman’s role is to consider if the Council has followed the correct process of establishing a person’s needs and if it acted correctly when this process was complete. In doing so we look at the information the council considered, and if it took account of the service user’s wishes.
70. Mr X says he does not feel that four hours of support is sufficient to meet his needs. The Council met with Mr X, listened to his views, and tried to understand what additional support he needed. Although Mr X strongly disagrees, the Council was satisfied four hours of support was enough based on his eligible care needs. That was down to the social worker’s professional judgement and a decision she was entitled to take. The Council’s assessments of Mr X highlight his sensory needs and the issues with his neighbour. Agency A was aware of the issues and agreed to listen and support him.
71. Having said that, the Council suggested commissioning an independent assessment in December 2019 from a consultant psychiatrist to see if any further support could be provided to Mr X. This was specifically to do with Mr X’s sensory needs. Mr X was open to this suggestion but said he needed further information. The Council did not pursue this further or provide Mr X with any further information. This is fault. Mr X says he would have agreed to a further assessment, and so he is left with a lingering doubt as to whether he may have been provided with further support if the Council had acted without fault.
72. Mr X says the Council has failed to deal with the issues with his neighbour. The Council explained to Mr X that his neighbour was not breaching any regulations by lighting his fire and therefore it could not legally stop him from doing so. The Council’s care assessments acknowledge these issues and state that staff needed to consider taking Mr X from his home environment during his support hours if his neighbour lit his fire.
73. Social Worker B met with Mr X’s neighbour on several occasions to discuss the issue with the security light. Mr X’s neighbour refused to consider the Council’s offer of changing his security light. As the Council did not consider the light was a statutory nuisance, it suggested other measures to resolve the issue. However, Mr X did not agree to any of the Council’s proposals.
74. The Council also suggested that Mr X could erect a fence to block out his neighbour’s light. Mr X was initially reluctant to pursue this option, as he was concerned that his neighbour would retaliate.
75. Mr X says the Council will pay for the fence, but it will not pay for the survey that is required for the fence to be built. He says the Council always agreed to pay for the fence, and he is unhappy that it has now changed its mind. Ms Y’s notes of the meeting on 31 May 2019 state the Council agreed to pay for the fence. The Council’s notes of the meeting do not state this.
76. 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. I have reviewed all the Council’s internal interactions between its different departments, as well as its interactions with Mr X and Ms Y. I have not seen in any of the Council’s notes or correspondence that it agreed to pay for fence. In my view if the Council had agreed to pay for the fence, it would have been apparent in its communications. Therefore, I find it more likely than not the Council did not agree to pay for the fence at the outset.
77. The Council did change its mind on 4 December 2020 and agreed to pay for the fence. However, there was no mention of it agreeing to pay for a survey in this email. Therefore, I do not find the Council was at fault for not paying for the survey, as that was not the agreement it reached.
78. The Council tried to find Mr X respite options, including a self-contained flat within a residential care home. Mr X said it was not suitable, and he did not agree to any of the Council’s other suggestions. The Council also said it would help Mr X rent a residential property, but it could not fund it for him. Mr X was unhappy with this, and so the matter did not progress any further. However, this was not because of any fault by the Council.
79. Mr X says the Council has not complied with the Autism Act 2009. In its response to my enquiries, the Council confirmed that each of the social workers that have dealt with Mr X have all had the appropriate autism awareness training. Mr X’s current social worker has extensive experience working with autistic adults. The Council assessed Mr X’s care and support needs in his preferred location, appointed a specialist autism agency to support him and liaised with Ms Y. I am therefore satisfied the Council complied with the Autism Act 2009.
80. Mr X also complained that Agency A regularly missed appointments with him. He has provided me with a list of appointments Agency A missed or hours that were cut short during 2020. The country was under COVID-19 restrictions from 25 March 2020 to 4 July 2020. The Council says that it was not possible to provide Mr X with the same level of support and the access to the community that he previously received.
81. The Council also says while it was aware of the initial reduction in support hours due to the COVID-19 pandemic, it was not aware of the other changes to Mr X’s care provision, and it would have challenged Agency A if it had known. Agency A says staff would often turn up at Mr X’s home and he would not open the door as it was not the staff member he wanted.
82. I accept that because of the COVID-19 pandemic, Agency A had to make some changes to the support Mr X received. However, the disruptions in Mr X’s care package went beyond the COVID-19 restrictions. This caused Mr X distress. While I can understand the Council’s comments that it was difficult for it to intervene as it did not know about the disruptions, it is ultimately responsible for Agency A as it commissioned its services to act on its behalf. I note Agency A's comments regarding the challenges it faced with providing Mr X with support. However, if the Council had a more robust system to monitor the support Agency A was providing, it could have intervened and tried to resolve the issues.
83. Councils have a legal responsibility under the Care Act 2014 to provide care and support plans for individuals that have eligible care needs. The Council has not drawn up its own care plan for Mr X because he strongly disagreed with the contents of it. It said the “how to best support me” document and Agency A’s care plan were sufficient and documented everything that was necessary. Due to Mr X’s disagreement with the Council’s care and support plan, it was not at fault for deviating outside of the process and using a different format.
84. The Council was at fault for its delay in sending through Mr X’s care assessment in August 2020. It did so on 24 November 2020. When the Council responded to Mr X’s complaint, it apologised for the delay. This is a suitable remedy to address Mr X’s injustice.

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Agreed action

85. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the service of Agency A, as well as fault by the Council, I have made recommendations only to the Council. To address the injustice caused by fault, by 25 March 2022 the Council has agreed to:

• Apologise to Mr X.
• Pay Mr X £300 for distress and upset caused by the disruption to his care package and the missed opportunity to pursue an independent assessment sooner.
• Write to Mr X and asks if he wishes to proceed with an independent assessment from a consultant psychiatrist. If Mr X agrees, the Council should work with the local Clinical Commissioning Group to arrange the assessment within four weeks of his acceptance.

86. By 22 April 2022:

• Review relevant policy/guidance documents and commissioning arrangements to ensure the effective and robust monitoring of commissioned domiciliary services.

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Final decision

87. There was fault by the Council, which caused Mr X an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

88. The Ombudsman cannot investigate late complaints unless there are good reasons to do so. A late complaint is when someone takes more than 12 months to complain to us about something a Council has done.
89. Ms Y contacted the Ombudsman in January 2020. She had previously complained to the Council on Mr X’s behalf in 2018. I am satisfied that Mr X and Ms Y had sufficient opportunities to complain to the Ombudsman sooner about issues before January 2019. I am therefore not exercising discretion to investigate anything that happened before January 2019.

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Investigator's decision on behalf of the Ombudsman