Decision : Upheld
Decision date : 15 Feb 2021
The Ombudsman's final decision:
Summary: Ms X complained the Council delayed providing a care package for her adult son. The Council was at fault. It took too long, failed to properly consider whether to award transport costs, failed to review the plan and inappropriately questioned a prospective personal assistant as part of the process. It has agreed to apologise and make payments to Ms X and her son to acknowledge the frustration and distress this caused. It has also agreed to review the care package.
- Ms X complained the Council delayed providing a care package for her adult son, Mr Y, so his needs were not met, and inappropriately questioned Mr Y’s proposed personal assistant as part of the process. This caused her and Mr Y distress and frustration. Ms X also said the Council failed to review the care package since its introduction and it was not sufficient to meet Mr Y’s needs. In particular, it did not include any access to transport or mileage provision.
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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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 the information provided by Ms X and have discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
- I gave Ms X and the Council the opportunity to comment on a draft of this decision and considered any comments I received in reaching 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.
- The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:
- The needs must arise from or be related to a physical or mental impairment or illness.
- Because of the needs, the adult must be unable to achieve two or more of the following outcomes:
- Managing and maintaining nutrition;
- Maintaining personal hygiene;
- Managing toilet needs;
- Being appropriately clothed;
- Being able to make use of the adult’s 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; and
- Carrying out any caring responsibilities the adult has for a child.
- Where an adult cannot achieve these outcomes, there is likely to be a significant impact on the adult’s well-being.
- Mr Y is in his twenties. He is on the autism spectrum and has a learning disability and severe anxiety.
- In August 2019 the Council’s Preparation for Adulthood Team received a referral for a needs assessment for Mr Y. A Clinical Psychologist from the Community Learning Disability Team (CLDT) working with Mr Y, contacted the Council at the end of August to ask when the assessment would take place. They chased the referral again in early October 2019 and the Council allocated a Care Manager to carry out the needs assessment in Mid-October 2019. However, due to staffing changes the Council reallocated the assessment to another Care Manager in early November 2019.
- In mid-November 2019, the Care Manager, along with an Occupational Therapist (OT) who was already working with Mr Y, visited him to carry out a needs assessment. Ms X also attended. The assessment was not completed as Mr Y found the process tiring and overwhelming. The Care Manager and OT carried out a second visit in early December 2019 to finish the assessment.
- The assessment identified Mr Y needed prompts and support in most daily activities to meet his care needs. He had eligible needs in a number of areas and received extensive support from Ms X to meet his needs. Ms X also had her own health issues. It noted Mr Y had a recent improvement in his mental health after working with the Community Learning Disability Team (CLDT). This meant he was well enough to access community-based activities, where previously he was unable to leave the house. It noted Mr Y was not able to access the community independently due to his learning disability and autism. The assessment also noted that Mr Y was unable to access his local community, go into the city centre or use public transport as he felt unsafe and worried for his own safety and the safety of those with him.
- The assessment noted ‘a proposed package of care has been discussed between family and CLDT to help [Mr Y] access the community, meet his sensory needs via physical exercise, reduce his social isolation and allow [Ms X] to rest’. Ms X and Mr Y had identified a personal assistant who had worked with him previously at school and who had provided some informal support. In relation to community-based activities, the assessment noted two locations ‘have been proposed as suitable locations as they are far enough for [Mr Y] not to feel threatened and CLDT have requested mileage (transport) to be paid as an exception to make this work. [Mr Y] does receive lower rate mobility.
- In late December 2019, the CLDT sent the Council a letter about Mr Y’s support package. This set out Mr Y would like support with going to the gym, to access social activities such as the cinema and to support tasks such as GP visits and managing correspondence. It explained the benefits of going to the gym in relation to Mr Y’s sensory needs. It also explained Mr Y required mileage as due to traumatic events in his past, his mental health prevented him using public transport or accessing activities locally. It said Mr Y would like 15 hours of support a week and explained how he would use this. It also requested a managed account and payroll service. It also noted Ms X had requested support with the process of organising the care package so the CLDT had referred Mr Y for a Care Act advocate.
- In January 2020 the Care Manager spoke to the Psychologist at CLDT and advised the Council did not pay for activities or travel and had not done so for a number of years. They told them they had completed the needs assessment and would be preparing the support plan that week.
- In late January and early February 2020 the Care Manager emailed Mr Y’s proposed personal assistant (PA). They asked about the informal support they had provided and about the proposed support for the future. They asked about the choice of gym and getting to and from it, and what support the P.A would provide when there. The care manager also asked the PA, via email whether, through the informal support, Mr Y’s ability to leave the house/access social environments and Mr Y’s ability to manage his anxiety had improved. The proposed PA responded by email.
- The Care Manager noted in February 2020 they had spoken with Ms X ‘concerning the 15 hours of support requested and mileage and that this will not be agreed’. Ms X was upset about the questioning of the prospective PA and raised concerns over the questions asked, which she said the PA was not qualified to answer. She was also concerned about the time the process was taking. Ms X later texted the Care Manager and asked them not to contact Mr Y again but to contact him through the CLDT psychologist.
- In February 2020, Mr Y was given an advocate to support him with the care planning process. The advocate contacted the Council for an update on progress. The Care Manager raised questions about the gym Mr Y proposed to use and suggested meeting with the proposed PA. The Care Manager also asked whether Mr Y received mobility allowance as he would be expected to use this towards his travel costs.
- The advocate met with Mr Y. They later telephoned the Care Manager and followed this up with an email. In this they noted Mr Y had lost faith in the Care Manager and did not want them meeting the PA. Mr Y was concerned the PA would get fed up and change their mind about supporting him. The advocate noted Ms X reported Mr Y’s mental health had dipped because of the delay in sorting out his support. They suggested the Care Manager provide a list of questions for the PA so they could go through these with Mr Y and reduce his anxiety. Mr Y sought 15 hours of support plus mileage.
- Ms X complained to the Ombudsman in March 2020 about the delay in providing services and the inappropriate questioning of the proposed PA. We referred the complaint to the Council to consider.
- In late March 2020 the Psychologist from CLDT emailed the Council to request urgent support for Mr Y to enable him to leave the house on a daily basis to improve his mental health. The Council agreed to provide five hours of support on an urgent basis. Mr Y declined this as being significantly less then he required. This would not enable him to receive support on a daily basis. The Council agreed to fund between 10 and 14 hours support per week to cover the COVID-19 crisis to be operated through a managed account.
- The Care Manager contacted the Psychologist in late March 2020. They proposed two hours of support a day and requested details of the proposed PAs to set up the payroll. The Care Manager also identified a company to manage the account on Mr Y’s behalf.
- The managed account company required information and appropriately signed documentation from Ms X before the care package could start. This was to ensure employment liability insurance was in place and to set up the employment contracts. Due to the COVID-19 pandemic it could not hold a face-to-face meeting with Ms X and she cannot easily access emails. Documents had to be sent and returned by post. The documentation was in place by the end of April 2020 and the care package commenced.
- The Council responded to Ms X’s complaint in July 2020. It apologised for the late complaint response. It confirmed the assessment and support plan were now in place and Mr Y was receiving a direct payment. It apologised that Mr Y’s PA was made to feel uncomfortable. It noted that ‘on reflection it may have been more appropriate to have held these discussions with [Mr Y] and his mother being present and to have further clarified the reasons for the proposed conversations’. It explained the Council proposed five hours of support initially due to Mr Y not having accessed the community for a significant period of time and that more hours may be too much. It said the manager had also taken into account the restrictions resulting from the COVID-19 pandemic. As soon as the manager was informed of Mr Y’s wish for the level to be reconsidered it was increased to 14 hours to be used flexibility. It advised that as the support had been in place some time, the next stage would be to review the plan and direct payment arrangements.
- Ms X remained unhappy and contacted the Ombudsman. The Council asked to review the complaint at the next stage of its complaints process. It responded to Ms X in November 2020. The Council, in its response, said too many barriers were put in place to enable Mr Y to receive the support he required. Questions were asked of the PA that could have been done in a more transparent way. When the hours were agreed, the direct payment should have been put in place and Mr Y and his family should have decided how this support was put in place. It noted questions were asked about the gym being used and this was not appropriate and not in the spirit of direct payments. It apologised for this and noted the Council was currently reviewing direct payments, how these were paid and the support needed by individuals from the Council to ensure the process was not a barrier to services.
- Ms X remained unhappy and so we considered her complaint.
- The Council delayed providing Mr Y with a care package and this is fault.
- The preparation for Adulthood Team received a request to assess Mr Y’s needs in August 2019. It did not start the assessment until November 2019. This delay is fault. I would have expected the assessment to have started within six to eight weeks.
- The needs assessment was carried out over two visits. This was appropriate given the impact on Mr Y. It was then completed in late January 2020. However, the Council failed to complete a support plan until March 2020 when it agreed to an urgent support plan of 14 hours a week. This delay was fault. The Council in its complaint response acknowledged too many barriers were put in place to enable Mr Y to receive the support he required.
- As part of the support planning process the care manager sought information from Mr Y’s prospective PA who was already providing him with some informal support. As the Council acknowledged in its complaint response, the nature of the questioning and manner in which this was carried out was not appropriate. It was for Mr Y to decide how best to use his direct payments to meet his eligible needs in line with his care and support plan. Mr Y, with support from a psychologist had set out his views on the support he needed to best meet those needs. The way in which the Council questioned the proposed PA was not in the spirit of direct payments. This was fault. Because of this Ms X and Mr Y lost faith in the Care Manager and refused to have any direct contact as part of the care planning process. This contributed to the delay in starting the care package.
- The Council originally offered Mr Y five hours of support. It explained why it offered this amount based on Mr Y not having accessed the community for a significant period, and the difficulties of getting support during the COVID-19 pandemic. When Mr Y asked for more hours the Council took account of his views and agreed to this. There was no fault in the Council’s actions.
- Due to the COVID-19 pandemic the company managing the direct payment account was unable to meet with Ms X. As she was unable to access emails, paperwork had to be completed by post. The company could not start the care package without the necessary insurance in place to protect Ms X’s interests. This delayed the start of the care package but was not due to Council fault.
- It took at least three months longer than it should have to start Mr Y’s care package. Mr Y was also caused upset and frustration by the manner in which the assessment was carried out. The support to Mr Y was also intended to provide respite for Ms X from her caring role so the lack of support increased the strain upon her. However, the COVID-19 pandemic has also impacted upon the support which can be provided to meet Mr Y’s needs through the closure of gyms and cinemas.
- The mobility component of PIP is to help with the extra costs of transport associated with long term illness or disability. In assessing a person’s contribution to their care costs the Council cannot take into account the mobility component of PIP. As this is not included in the assessment of costs there is an expectation that if you receive the mobility component of PIP you would use it to fund transport costs. The Council is not at fault for expecting those who get the mobility component of PIP to use it to towards their transport costs.
- However, Mr Y’s needs assessment sets out that Mr Y is unable to access local facilities and to use public transport. The Council failed to properly consider Mr Y’s request for transport, whether he had sufficient income from his mobility PIP to cover the costs, and how the lack of transport may impact upon his ability to access support. This is fault.
- However, the COVID-19 pandemic has impacted upon the support that can be provided to Mr Y with the closure of gyms and cinemas which has limited the injustice this has caused Mr Y.
Review of the care plan
- The care and support guidance sets out an expectation that new care packages should have a light touch review within six to eight weeks and then planned reviews on a yearly basis. The Council’s complaint response in July 2020 acknowledged Mr Y’s care plan should be reviewed. This has yet to happen. This delay is fault.
- Within one month of the final decision the Council has agreed to apologise to Mr Y and pay him £500 to acknowledge the loss of support, frustration and distress caused by the identified faults. It has also agreed to apologise to Ms X and pay her £250 to acknowledge the frustration, distress and missed respite caused by the identified faults.
- Within two months of the final decision, the Council has agreed to review Mr Y’s needs assessment and support plan. In particular it should consider whether to provide transport costs as part of his care and support plan.
- It should provide the Ombudsman with evidence it has done this.
- I have completed my investigation. There was evidence of fault by the Council causing injustice which the Council has agreed to remedy.
Investigator's decision on behalf of the Ombudsman