Summary: The Council delayed completing adult social care needs assessments and reviews. This meant family carers felt under pressure to provide support, and the family is uncertain about whether the situation might have been better. Mr C is in a temporary placement, the Council needs to complete relevant assessments to decide on the best way to meet his long-term needs. The Council will complete this work and pay Ms B and Mr C £500 each to acknowledge the impact on them.

The complaint

1. The complaint, who I will call Ms B, says the communication and support from the Adult Social care department since her son, Mr C, transitioned from Children’s Services has been poor. Ms B says the Council failed to involve her in decisions for Mr C’s care and left her unsupported in her caring role during the Covid-19 pandemic. Ms B believes the Council could have visited to properly assess Mr C’s and her needs, following changes in circumstances. Mr C started to have seizures, and Ms B needed surgery for a detached thumb. Ms B says Mr C is not happy in the current placement, which was never intended to be a long-term placement, but he has been there since March 2021, and the Council has not resolved whether Mr C should be NHS funded.
2. Ms B explains she felt isolated and unsupported. Looking after Mr C became increasingly more difficult and stressful. Ms B was not sleeping for fear of Mr C having a seizure. Ms B was also not able to rest for the full period she should have after her surgery, because of the demands on her as Mr C’s carer. Mr C is unhappy in the current placement, but the family feel no-one is listening to their wishes.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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 provided by Ms B, including during a telephone conversation.
• Information from the Council in response to my enquiries.
• The Care Act 2014 and associated statutory guidance.
• The Ombudsman’s guidance ‘Good administrative practice during Covid-19’.
8. Ms B 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 law and guidance

9. 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 everyone regardless of their finances or whether the council thinks the person 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.
10. The Care Act 2014 gives councils 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 must 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.
11. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
12. 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 enable people to arrange their own care and support to meet those needs. The council has a key role in ensuring 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.
13. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant Clinical Commissioning Group (CCG). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.
14. Individuals may need care and support provided by their local council and/or services arranged by CCGs. Councils and CCGs therefore have a responsibility to ensure the assessment of eligibility for care and support and for CHC respectively take place in a timely and consistent manner. If, following an assessment, a person is not found to be eligible for NHS CHC, the NHS may still have a responsibility to contribute to that person’s health needs, either by directly commissioning services or by part-funding the package of support. Where a package of support is commissioned or funded by both a council and a CCG, this is known as a ‘joint package of care’. A joint package of care could include NHS-funded nursing care and other NHS services that are beyond the powers of a council to meet.
15. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman
16. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
17. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

What happened

18. Mr C is a young adult with a learning disability and severe autism. Mr C lived at home with his mother (Ms B), and his sister. Mr C attended school and spent time at his father’s house. Mr C had direct payments and employed a personal assistant who supported him for eight hours per week. Mr C had two nights respite stay a month to give Ms B a break from her caring role. Mr C was finishing school in July 2020, so the Council needed to plan his support thereafter.
19. Mr C has a joint package of care, with the NHS providing an 8% contribution towards the cost. The Council has taken the lead in assessing and arranging Mr C’s care provision.
20. While planning the move from school, Ms B found a placement she was happy with and asked that Mr C go there every other weekend. This was agreed, and Mr C started to go there, I will call it placement A. Mr C also kept the same personal assistant for eight hours per week.
21. It is unclear how Mr C would spend his time in the week once he finished school, other than the eight hours with his personal assistant. I have seen no care and support plan.
22. Because of Covid-19 Mr C left school in March 2020. In April 2020 the Council and Ms B discussed that because of Covid-19, day centres were currently closed. The Council contacted Ms B in July, day centres were still closed, the Council offered to increase the hours of Mr C’s personal assistant. Ms B did not take up this offer, she explains to me the personal assistant could not increase their hours, and it would take time to recruit someone new and gradually introduce them to Mr C. The Council’s notes record that Ms B told it she was coping ok and did not need any more support then but would make contact if Mr C’s behaviour worsened.
23. The Council completed a review of Mr C’s care support in September 2020. Ms B said Mr C was isolating himself in his bedroom a lot, probably because he did not have a routine or activities in the community because services were closed due to Covid-19. Ms B was not getting any break from her caring role. Ms B did not want a full-time residential placement for Mr C but would like the residential respite placement. Ms B said at that time there was no further support needed from the Council, and they were awaiting day centres and placement A to re-open.
24. A month later Mr C suffered a seizure for the first time, and bit off part of Ms B’s thumb for which Ms B had surgery. Mr C stayed with his father. The Council contacted placement A, but they could not take Mr C for a few weeks. Ms B and Mr C’s father told the Council they could not support Mr C at home, but Mr C’s father agreed to do so until Mr C could go to placement A. However, a couple of days later Mr C’s father contacted the Council to say Mr C had attacked him and he needed an urgent placement. The Council contacted placement A who agreed to take Mr C a couple of days later.
25. Ms B told the Council she was concerned she would not be able to support Mr C once his stay at placement A ended in a few weeks. The Council suggested increasing the personal assistant’s hours, but Ms B said this would not be appropriate. The Council agreed to provide Ms B with regular respite, but placement A was only accepting minimum stays of seven nights. The Council arranged Mr C to stay with Ms B for three weeks and then placement A for one week. Ms B was worried how she would manage Mr C’s support for three weeks with her thumb recovering from surgery and worrying about him having seizures.
26. Placement A then reduced its occupancy capacity because of Covid-19 and could no longer support Mr C. The Council again offered to increase the personal assistant’s hours. Ms B agreed to think about it but explained it would not be a quick process as she would need to advertise and recruit someone. The Council explained most day centres were closed or running at reduced capacity so there were limited options but would make enquiries.
27. Three months later Mr C had another seizure and went to hospital, he was diagnosed with epilepsy. Ms B no longer felt able to support Mr C at home. The hospital discharged Mr C to placement A in March 2021. This was intended to be initially on a short-term basis to assess and plan how to meet Mr C’s longer term needs and where he should live. Ms B raised concerns at the distance for her to visit. However, Mr C remains living at placement A.
28. In January 2022 the Council noted Mr C had hardly left placement A and was in danger of becoming institutionalised. The Council and CCG agreed to provide funding for 2:1 support to enable Mr C to access services and activities in the community for seven hours per week.

Was there fault causing injustice?

29. Mr C left school during the Covid-19 pandemic. This had an affect on what support was available to Ms B and Mr C; the planned respite stays at placement A was not available. Ms B at first told the Council she was coping and did not need any extra support, so I find no fault with the Council during July to September 2020. I recognise at this time no-one knew how long the pandemic would impact for, and Ms B did not know she would have such a long period without support, but that is not Council fault.
30. The Care Act guidance states “If there is any information or evidence that suggests that circumstances have changed in a way that may affect the efficacy, appropriateness or content of the plan, then the local authority should immediately conduct a review to ascertain whether the plan requires revision. For example this could be where a carer is no longer able to provide the same level of care.”
31. In October 2020 the Council was aware the situation had changed. Ms B was in hospital and could not continue her caring role for Mr C, and Mr C’s circumstances had changed having had a seizure. This change in circumstances should have triggered a review to find out if the Council needed to amend Mr C’s care plan. I have no evidence the Council asked Ms B and Mr C’s father what support they could provide to Mr C and how they could meet his needs. The Council contacted placement A, but I have no evidence it considered any other options. This placed pressure on Ms B and Mr C’s father to provide more support than they wished, or were able to, until placement A could support Mr C. This pushed Mr C’s parents to their breaking point and is why Ms B says she feels unsupported. Ms B says she could not sleep for worrying about Mr C having a seizure in his sleep, and physical support was difficult with her healing thumb.
32. Ms B says the Council would not visit because of Covid-19 and would only do so in exceptional circumstances. Ms B fails to see what would be more exceptional than having your thumb bitten off. Ms B says she felt very lonely at this time, and not of the mind to ring up the Council but had someone visited it would have opened the door to a conversation about how Ms B was coping. The Council should have conduced a review, which would have enabled these conversations.
33. The Council did not enquire with other providers until two months after Ms B’s surgery. I recognise the preference for provider A given it was familiar to Mr C, but the Council could have made enquiries with other providers sooner, not doing so was fault. I cannot say the outcome would be any different, given many placements were closed or working at reduced capacity levels.
34. During November to March Ms B had to manage Mr C’s care needs without any respite from her caring role.
35. Following Mr C’s discharge from hospital the Council should have assessed his long-term care needs and decide a plan on how it would meet those needs. The Council should have conducted a review of Mr C’s stay at placement A within six weeks of his discharge from hospital, to check it was adequately meeting his needs. The review did not take place until ten months later, which found out Mr C needed more support hours so he could go out in the community. The delay in completing the review means Mr C may have lost out on support, and he has not left placement A for ten months.
36. I have no evidence of an assessment or care plan since Mr C left hospital, so it is unclear what the Council has assessed Mr C needs in the longer term, for example a residential placement or a supported living placement. The Council at first had Ms B looking at residential placements, but this appears to have been a waste of her time as the Council later appears to have decided supported living might meet Mr C’s needs at a cheaper cost and therefore be more appropriate. As there is no assessment or care plan, I have no evidence the Council has properly made decisions about how to meet Mr C’s needs, this is fault.
37. Ms B raised concerns that placement A is far from where she lives so she cannot visit as regularly as she would like. Mr C remains there as a temporary placement almost a year later, which has an impact on Ms B and Mr C’s relationship. This is an issue that should have been addressed by a proper assessment of needs, and a plan of how to meet care needs. The Council’s delay in completing this leaves Ms B with uncertainty about whether the Council could have found a more suitable placement for Mr C, either temporary or permanent, which would have made visiting easier.
38. I find the Council made adequate referrals to the NHS about funding, and Ms B has been involved in NHS funding reviews. Any ongoing issues are not because of fault of the Council.
39. Ms B explains she has lost trust in the Council. The Council should offer her advice, reassurance, and support but this has been lacking. Ms B feels the Council has only caused her more stress and pressure. Ms B is disappointed the Council did not acknowledge its failings during its own complaint investigation, and she has had to come to the Ombudsman to get a fair outcome. Ms B is disappointed the social worker has never met her or Mr C and feels this is imperative to understand their needs and build a working relationship to move forward.

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Agreed action

40. To acknowledge the impact of the identified fault, and to put matters right, the Council will:
1. Pay Ms B and Mr C £500 each to acknowledge their distress and uncertainty.
2. Complete an assessment/review of Mr B’s care and support needs, and produce a care plan of how it will meet those needs.
3. Conduct a Mental Capacity Act assessment to decide if Mr C has capacity to decide where to live long term. If Mr C does not have capacity to make this decision, make a best interests decision on his behalf in accordance with the Mental Capacity Act 2005.
41. Ms B said she would like a change of social work team. This is not something the Ombudsman can recommend, but the Council should consider how it can improve the working relationship with Ms B, which might involve a face-to-face meeting as Ms B suggests.
42. The Council should make the payment within one month of the Ombudsman’s final decision and have made arrangements to start the needs assessment and mental capacity assessment within one month of the Ombudsman’s final decision. The Council should evidence compliance to the Ombudsman.

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Final decision

43. I have completed my investigation on the basis there is fault by the Council which has caused injustice to Ms B and Mr C. The agreed actions are sufficient to acknowledge the impact on Ms B and Mr C.

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Investigator's decision on behalf of the Ombudsman