Summary: Mr B complained the Council reduced the number of hours his son, C was entitled to on his care plan without proper consultation. Mr B says the actions of the Council have led to C becoming withdrawn and depressed and has had a harmful effect on his health. We find fault with the Council’s handling and implementation of reducing C’s agreed care hours. An injustice has been caused to both C and Mr B. To remedy the injustice the Council has agreed to apologise to C and Mr B, pay a financial remedy to both of them, review and reinstate C’s care and support hours and learn from this complaint. The Council has also agreed to review all other cases affected by similar fault.

The complaint

1. Mr B complains on behalf of his son, who I will call C. C receives one to one care in supported accommodation. Mr B says the Council reduced his son’s one to one care hours without consultation. The family found out about the reduction almost ten months after it had been implemented by the Council. Mr B says the reduction in hours has affected C’s physical health. Mr B would like an apology from the Council to C and his family and would like C’s one to one hours reinstated.
2. Mr B represents his son, C in this complaint.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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)
7. We normally expect someone to complain to the Care Quality Commission about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)

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How I considered this complaint

8. I have spoken with Mr B by telephone and considered the correspondence in support of this complaint.
9. I have made enquiries with the Council and considered the documentation provided.
10. I have sent a draft to Mr B and the Council and have considered their comments before making a final decision.

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What I found

Law and policy

11. The Care Act 2014 sets out local authorities’ duties in relation to assessing people’s needs and their eligibility for publicly funded care and support. Under the Act, local authorities must:

• carry out an assessment of anyone who appears to require care and support, regardless of their likely eligibility for state-funded care.
• focus the assessment on the person’s needs and how they impact on their wellbeing, and the outcomes they want to achieve.
• involve the person in the assessment and, where appropriate, arrange for an independent advocate to assist the involvement of a person in the assessment process if:
• they have a substantial difficulty in being involved; and
• there is no one available to support them and represent the person’s wishes.
• consider other things besides care services that can contribute to the desired outcomes (e.g. preventive services, community support).

12. Eligibility determination must be made after the needs assessment.
13. The Care Act gives local authorities a legal responsibility to provide a care and support plan. 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.

Care and Support Statutory Guidance

14. The Guidance also sets out the Local Authorities responsibilities in relation to

• appropriate and proportionate assessments;
• co-production;
• whole family approach;
• supported self-assessments;
• fluctuating needs (The Local Authority must consider whether the individual’s level of need is likely to fluctuate, the frequency and degree of fluctuation, and what ongoing needs are likely to be;
• integrated assessments;
• NHS Continuing Healthcare.

Carers’ assessments

15. Where an individual provides or intends to provide care for another adult the Local Authority must consider whether to carry out a carers’ assessment if it appears the carer may have any level of needs for support.
16. Carers’ assessments must seek to establish;

• the carer’s need for support.
• the sustainability of the caring role itself including both practical and emotional support the carer provides to the adult.

17. The Council must consider whether the carer is currently able and willing to continue to provide care for the adult needing support.
18. Carers' assessments must also consider the carer’s activities beyond their caring responsibilities and the impact of caring upon those activities.

What Happened

19. C suffers from severe autism, learning difficulties and has communication difficulties. Mr B says that C also displays complex and challenging behaviours.
20. C has lived in supported accommodation for several years. He needs a high degree of care for everyday functioning and needs help with getting dressed, bathing and should not go out unaccompanied. C was well settled in his home and was supported to attend a day centre where he participated in activities. C was also supported in daily exercise.
21. In December 2018 C’s level of care and support was assessed and it was agreed in his Care and Support Plan that he would require 79 hours of one to one care a week. This review was agreed and attended by C’s parents and social worker.
22. Between October 2018 and February 2019, the Council decided to instruct a project called Targeted Intervention to audit the care and support hours the Council had commissioned for C. Targeted Intervention’s role was to audit the amount of commissioned hours the Council paid for against the number of actual hours a week C actually used.
23. In undertaking the audit Targeted Intervention attended C’s supported accommodation and spoke to C’s supporting staff and reviewed duty rotas. The Council said this was an audit and not a reassessment of C’s needs.
24. Upon completing the audit, Targeted Intervention suggested C had not been using all of his commissioned hours which had been agreed on his care plan. In its assessment, Targeted Intervention said C regularly went to his parent’s home on a Friday evening and returned on a Monday morning. Targeted Intervention advised the Council that C’s commissioned hours should be reduced from the 79 hours of one to one care and support per week agreed in his Care Plan to 47 hours of care and support per week.
25. The Council considered this and agreed with Targeted Intervention’s audit. It decided to reduce C’s hours in February 2019 from 79 to 47 hours of one to one care. The Council did not update or review C’s Care and Support Plan or include or inform either C or his parents in its decision or implementation of the reduction.
26. In December 2019, Mr B attended for C’s annual Care Plan review. It was only at this stage that Mr B was told C’s hours had been reduced. C’s parents challenged this and said this was the first time they had been notified of the reduction. At the review meeting the Council decided to formally implement the reduction in hours which were reflected in C’s Care and Support Plan dated December 2019. The Council explained to C’s parents that it believed C spent most weekends with them and that he was not using his commissioned hours.
27. In January 2020 Mr B complained to the Council about the handling of the reduction to C hours. He said C’s family has never been informed of the reduction and were simply told at the review meeting of December 2019 that this had happened.
28. In its response to Mr B the Council said the change in hours recommended by Targeted Intervention and implemented by the Council in February 2019 was an audit and not a reassessment of C’s needs. It also apologised to Mr B for the shock of finding out C’s hours had been reduced and said it was disappointed neither the service provider or the Council had informed C or his family at the time of the reduction.
29. Mr B says C’s physical and mental health had suffered due to the reduction in hours and says C was unable to exercise in the evenings. Mr B also pointed out that exercise was good in managing not only C’s physical health but also his mood, anxieties and behaviour. Since the reduction in hours Mr B said C’s behaviour and mood had deteriorated. Mr B provided the Council with a medical report, a letter from C’s GP and reports from a clinic he attends. He also noted the Council had not sought any advice from medical professionals involved in C’s care before reducing his hours. Mr B also explained that he felt C’s needs and level of support had not changed and told the Council he would like C’s 79 hours of one to one support reinstated.
30. Following the review the Council agreed to increase C’s 47 hours by a further 7 hours of one to one support for C making the total number of hours of support rise to 54 hours. While the Council say C was supported at all times it acknowledged the reduction in hours has left C unable to do various activities should he wish. It also said that it would include an extra 12 hours of support over the weekend should C decide he wanted to stay in his own home. This would be reduced if C wished to visit his parents if he wished over the weekend, offering him a degree of flexibility.
31. The Council partially upheld Mr B’s complaint and acknowledged it had not informed or included either C or his family in the process of reducing C's agreed hours between February 2019 and December 2019. However, the Council did not reinstate the hours of support and care that had been agreed in the Care and Support Plan dated December 2018.
32. Mr B complained to the Ombudsman on behalf of his son in September 2020.
33. In response to my enquiries, the Council acknowledged it did not adopt a holistic approach in assessing C’s care and support plan. The Council has offered remedial actions including an apology to C and Mr B for the faults that occurred. The Council also offered to reinstate 79 hours of one to one care. The Council said it will reassess C’s care and support plan and says it has offered Mr B a carers’ assessment. The Council further offered a payment of £500 to C and £500 to Mr B. The Council told me it wishes to learn from the complaint and will review its current practices.

Analysis

34. In February 2019, the Council decided to reduce C’s support hours to 47 hours a week after reviewing the audit by Targeted Intervention. The Council said this was because it had seen evidence that C regularly went to his parents address at weekends. The Council pointed out they have a responsibility to review financial arrangements and seek the best value for money. Although the Council say this was an audit and not a reassessment, I am satisfied that the reduction in C’s support hours amounted to a reassessment. This is fault. The law says the Council should have involved and notified C and his family of any reassessment. It should have also followed the guidance in adopting a family centred approach when reducing C’s hours.
35. This fault caused an injustice to C who due to the reduction in hours missed out on vital exercise and activities and Mr B says it caused a deterioration on C’s health. An injustice was also caused to Mr B and his wife, who noticed a marked change in C’s behaviour and had to manage this when he visited. They also suffered distress in being told of the reduction of hours as well as being put to time and trouble in the pursuit of this complaint. The Council has recognised this was fault and say it did increase C’s hours to enable him to pursue supported activities. It also acknowledges it should have informed and involved C and his parents of the audit and the reduction to C’s Care and Support plan hours.
36. The Council did not consider whether C’s care and support needs could be met with reduced hours. Its rationale appears to have been C’s parents would support him during his time with them over the weekend. If it had conducted a further reassessment of C’s care and support needs it could have explored this and gained the views of his parents and support workers. It did not do this. This was fault.
37. The Council’s rationale for reducing C’s support hours was the evidence it saw from the audit conducted by Targeted Intervention. It said C spent every weekend with his parents, which it says was evident from both speaking to staff and reviewing specific rotas and timetables. It would be reasonable to expect the Council to have considered whether it should have completed a carers assessment for C’s parents due to the amount of time it said he spent there.
38. The guidance says that the Council should have made an assessment of C’s parents and considered if they needed any support whilst caring for C. It should have also spoken with them to consider if Mr B and his wife were able and willing to undertake this role. The Council say that it was C’s parents wish to accommodate C at their home every weekend and say this was not an expectation of the Council. Mr B says accommodating C at their home was a choice and not an obligation. He felt the Council’s decision to reduce C’s hours left them no choice but to accommodate and support C over the weekend. Mr B also commented the family had other caring commitments and felt the Council’s reduction in hours meant C could not make the choice to stay in his own home over the weekend if he wished. This was fault and put Mr B to time, trouble and distress. It also failed to offer support to C and by reducing his hours took away his ability to make his own choices as to where he would spend his weekends. This was fault and caused an injustice to C.
39. The Council have agreed that it missed the opportunity to consider C’s parents as carers and offer them support. It acknowledges it missed two opportunities to conduct or consider a carers’ assessment in both May 2019 and January 2020.
40. The Council did not make its decision properly when it reduced C’s support hours. The Council failed to follow both the law and guidance set down. Given C needs did not appear to change from the Care and Support Plan agreed in December 2018 if the Council felt C’s hours needed to be reduced it should have reassessed C’s care and support plan. This would have given C, his family and any health care professionals involved in C’s care and support the opportunity to have their views and concerns considered. This was fault and caused injustice to C and his family.
41. Where we find fault that has caused injustice we aim to put the person back in the place they would have been but for the fault. Our Guidance on Remedies suggests that where a person cannot be put back in the place they would have been but for the fault identified in the investigation we will recommend the Council makes a symbolic payment in recognition of the distress caused and the avoidable time and inconvenience to which C and Mr B have been put.
42. In making the following recommendations I have considered the Council’s offer of remedial action.

Agreed action

43. To address the injustice caused the Council has agreed, within one month of my final decision, to:

• Apologise to C and Mr B and family for the time, trouble and distress of reducing his care and support plan hours and;
• Complete a reassessment of C’s care and support plan and pending the outcome of the review reinstate his 79 hours of one to one care and support;
• Offer C’s parents a further carer’s assessment subject to C’s parents’ consent;
• Pay C £500 in recognition of the distress and impact caused by reducing his care and support hours;
• Pay Mr B £500 in recognition of the distress cause in not involving or informing them of the reduction in C’s care and support hours and in recognition of not offering or considering a carer’s assessment to support C’s needs;
• Share the final decision with staff to reflect the importance of reviewing care and support plans.

44. The law allows us to make recommendations to councils to review and identify other residents who may have been caused an injustice arising from a systemic fault.
45. Within one month of my final decision the Council has agreed to complete an action plan and clear timetable detailing how a review into any similar faults or injustice where Targeted Intervention have recommended changes will be undertaken and resourced.
46. The Council has explained it cannot currently say how long it will take to complete the actions set out in its action plan. It has therefore agreed that it will update the Ombudsman of the progress of its review and continue this every three months until the action plan is complete.

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Final decision

47. We find fault with the Council’s handling and reduction of hours of C’s care and assessment plan. This has caused an injustice to both C and Mr B and his family. The Council has agreed to remedy this so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman