Summary: The Council failed to provide a personal budget to the complainant. It did not properly explain the reasons it rejected a potential care provider; and failed to properly consider reasons other suggested providers were inappropriate. The Council has agreed to apologise to Mr D and his family, make a payment of £350, reconsider its decision taking into account the findings in this report, and the availability of an alternative which meets Mr D’s needs.

The complaint

1. Solicitors act for Mr D. Mr D’s parents, Mr and Mrs C have also supported him in making this complaint. I have used initials rather than real names to protect anonymity.
2. Mr D complains the Council:-
1. acted unlawfully by using cost as a consideration in how to meet needs;
2. failed to consider medical information;
3. reneged on an agreement to provide support at a particular facility;
4. delayed decision making;
5. asked Mr D’s family to consider, and look at inappropriate placements;
6. failed to consider the impact and views of Mr D’s parents who are in their seventies.
3. As a result of these failures Mr D has not moved into alternative accommodation and his parents have the ongoing concern about the long term arrangements for his care.

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The Ombudsman’s role and powers

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)
5. 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)
6. 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

7. I considered information Mr D’s solicitors provided and made enquiries of the Council. I read the Council’s response and considered both the documents provided and the applicable law and guidance. This included:-
• care records;
• assessments and support plans;
• Care Act 2014; and
• Care and Support Statutory Guidance 2014.
8. The solicitors 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

Background information

9. Mr D lives in the community with his parents. He has multiple health problems which include epilepsy. As well as support from his parents Mr D attends a day centre during the week and has paid carers to help him. Both the Council and NHS fund Mr D’s care package.

What happened

10. Mr and Mrs C are in their seventies. In 2017 during a review Mr and Mrs C raised their concerns about Mr D’s care provision when they died. They wanted to explore alternative accommodation and support for Mr D. It was important that any provision was near to Mr D’s brother so he could maintain the strong family bond and involvement.
11. As Mr D had never spent a night away from home the social worker suggested that any move should involve a series of short breaks first. In February 2018 the social worker completed a thorough assessment and detailed support plan. This support plan did not provide Mr D with details of a personal budget he would need if he moved from the family home. A personal budget is the amount of money the Council assesses a person requires to meet their eligible care needs.
12. The social worker recommended X as a possible placement for Mr D. X is near Mr and Mrs C’s son. Mr and Mrs C visited X and agreed it would meet Mr D’s needs and was in the right location for family to stay involved.
13. On 30 November 2018 the social worker records,
14. “They sent already quote of £2500/week, which is too high. However the family visited the place and said that manager is happy to discuss and negotiate price with LBN.
15. Please could you contact the place and negotiate costs in order to present to Panel case?
16. Also, could you ask for quotes for respite?”
17. X assessed Mr D and said it could provide services to meet his needs. A few weeks later the brokerage team sent X a support plan so it could provide a costing.
18. The social worker visited X and on 9 May 2019 records, “The cost per week they are requesting is £2,373.60, however after some negotiations; they have agreed a reduction, so the final cost will be £2000 per week.”
19. At the same time the social worker continued to provide alternative care providers for Mr and Mrs C to view.
20. In July 2019 the Council wrote to Mr and Mrs C, it said it would not fund X as it was unsuitable for Mr D. This was because it was a brain injury unit and Mr D did not have a brain injury. The letter said the family needed to exhaust all the placements in the local area before looking further afield. It provided details of two other placements.
21. The Council and Mr D then sought an independent view from Mr D’s consultant about whether Mr D had a brain injury. The consultant said Mr D did not have a brain injury. He provided more detail in a later response and said that although Mr D did not have a brain injury, a care home that supported people with brain injuries could meet his needs.
22. In response to my enquiries the Council says X is an unsuitable placement for Mr D because he needs supported accommodation not residential care which it considers “institutional”. It says its focus is “promoting people’s independence and supporting people to live in the community wherever possible”.
23. The Council says there is provision in the local area which could meet Mr D’s needs. However Mr and Mrs C have refused to visit them, or let care providers complete an assessment of Mr D.
24. The Council has suggested nine possible schemes which Mr C has visited. Mr C does not consider the majority are suitable. This is on the most part for two reasons:-
• Steps – Mr D is a wheelchair user outdoors and unable to walk internally without support. He does not have to navigate steps either within his home or the day centre he attends.
• Self contained flats – Mr D has never lived alone and can have company and support all the time. It was unclear how these facilities would meet Mr D’s needs.
25. In response to a draft of this statement the Council says it made potential providers aware of Mr D’s mobility needs and that they would have factored those into their assessments when they were completed. The Council also commented that most supported living accommodation has communal areas where socialising and activities can take place.
26. Mr and Mrs C agreed to two alternative placements to assess Mr D, only one however completed an assessment.

What should have happened

27. 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 local authority 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.
28. The Care Act 2014 advocates a whole family approach to assessment. This means taking into account the needs of and impact on family when reaching a decision on how to meet needs.
29. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
30. Paragraph 10.27 of the Care and Support Statutory guidance says “in determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. ………The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). ……..The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.”

Is there fault causing injustice?

31. The Council’s assessment is comprehensive and the support plan produced detailed. However the Council failed to provide Mr D an indicative budget about how much the Council considers it will cost to meet Mr D’s needs, or the level of his care needs. This is fault.
32. The NHS partly fund Mr D’s care package but the Council cannot evidence it involved them in the assessment about Mr D’s health needs and how they should be met. This is concerning as Mr D has daily seizures that can last up to 30 minutes. I consider the failure to record a health perspective as part of the assessment is fault.
33. When the Council obtained a health perspective from Mr D’s consultant as part or finding out whether X was a suitable placement, it did not properly consider the health recommendation about suitability. It is unclear on what basis the Council is rejecting X. It has produced various reasons the latest is that X is a residential care home and that supported living should be the preferred option rather than “institutional” care. However as the Council says itself the focus of provision should be meeting Mr D’s needs rather than the type of provision.
34. There is recording the Council considers X too expensive and without tangible evidence to the contrary, and although the Council disputes this, I consider on balance this is the reason the Council has rejected X.
35. The Care Act allows councils to look at resources when considering how to meet needs in a more cost effective way. I therefore do not find fault with the Council for suggesting alternatives for Mr and Mrs C to look at. I am however unable to say Mr and Mrs C were uncooperative. They looked at various facilities offered and made relevant points about the suitability of the care providers. The Council however did not properly consider the rejections and their validity. If it had done it could have either alleviated the family’s fears, or clearly explained why some of the objections, although considered, were unfounded.
36. I refer particularly to Mr D’s need for level access accommodation. This is raised by Mr and Mrs C several times. The Council however failed to say whether it had assessed Mr D as able to navigate stairs or whether he needed level access accommodation.
37. Similarly I cannot criticise Mr and Mrs C for not wanting providers to assess Mr D because of the fear of contracting Covid-19. This was a real threat to them as two individuals over 70, and Mr D who has a variety of health problems.
38. The Council considered the family’s view about the location of potential care providers and there is evidence it tried to find provision within the preferred area. This was an ongoing process. It is unclear why at one point it set a location boundary of the borough. This caused upset and confusion and not in line with the Care Act both in offering choice and having a family approach to service provision.
39. I am unable to say whether, but for the faults I have identified, the Council should have offered Mr D a place at X. This is because it is not for the Ombudsman to make such a professional judgement. It is clear X can meet Mr D’s needs but as stated above the Council has a responsibility to consider cost effectiveness when meeting needs.
40. However I have found procedural faults in the actions of the Council. These have caused Mr and Mrs C uncertainty, anxiety and frustration in the repeated attempts to obtain answers and in their continued efforts to look at potentially unsuitable care providers. Mr and Mrs C are no further forward than they were four years ago. While they continue to provide care, the passage of time has exacerbated their concerns about what will happen to Mr D after their death or if they become ill.
41. The Council must either accept that X is the only suitable option for Mr D or provide an alternative which meets Mr D’s needs.

Agreed action

42. I consider there was fault in the Council’s actions which caused Mr D and his family injustice. The Council has agreed to take the following action to remedy the complaint:-
1. apologise to Mr D and his family about the failures I have identified in this statement;
2. make a payment of £350 to Mr and Mrs C for the raised expectation created by the Council, the lack of transparency which has made it difficult for them to understand decision making, and the frustration caused by the failure of the Council to respond to Mr and Mrs C’s concerns about potential care providers;
3. obtain medical information to ascertain Mr D’s medical needs and an occupational therapy report to find out what type of accommodation and/or support Mr D requires to meet his mobility needs;
4. incorporate these views within the assessment and provide a revised support plan and personal budget for Mr D;
5. consider whether there are any other options available that meet Mr D’s needs. This should also have regard to proximity to Mr D’s brother. The Council should share these options with Mr D’s family and consider any feedback;
6. make a reasoned decision whether given any revisions X is a suitable place for Mr D, if it is not provide reasons. If it is, but the Council considers there is a more suitable alternative, provide details of that alternative and set out the reasons why the Council has made this decision.
7. remind staff about the importance of incorporating medical opinion within assessments;
8. remind staff about the importance about having a family approach to assessment and incorporating views into the support planning stage as well as assessment;
9. remind officers about making transparent decisions and not make judgements based purely on cost.
43. The Council should complete (a) and (b) within a month of the final decision and the remaining actions within three months of the final decision.

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Final decision

44. I have found fault in the Council’s actions which have caused Mr D and his family injustice. I have now completed my investigation and closed the complaint on the basis of the agreed action above.

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Investigator's decision on behalf of the Ombudsman