Summary: Mr X complained the Council failed to properly assess and meet his care needs since 2017. Mr X also said the Council failed to make reasonable adjustments for his disabilities, did not communicate with him and his representatives properly and failed to consider his complaint about the matters. The Council failed to review Mr X’s care and support in line with the legislation, to meet some of his eligible care needs and to properly consider his complaint about that matter. The Council agreed to apologise to Mr X for the frustration and distress caused and pay him £1200.

The complaint

1. Mr X complained the Council failed to properly assess and meet his care needs since 2017. Mr X also said the Council failed to make reasonable adjustments for his disabilities, did not communicate with him and his representatives properly and failed to consider his complaint about the matters. Mr X stated this caused him distress, impacted his mental health and prevented him being independent.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. If we are satisfied with an organisation’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

5. I read the documents provided by Mr X’s legal representative and discussed the matter with them on the phone.
6. I considered the documents the Council provided in response to my enquiries.
7. I considered our Guidance on Remedies which is available on our website.
8. Mr X 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 legislation

Care and support

9. Councils must carry out an assessment for any adult with an appearance of need for care and support. 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. (Sections 9 and 10, Care Act 2014)
10. Councils have a legal responsibility to provide a care and support plan. The care and support plan should consider what needs 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. 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. (Care Act 2014)
11. Councils should keep care and support plans under review. (Section 27, Care Act 2014). Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. 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. A council has a duty to arrange care and support for those with eligible needs. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
13. Direct payments are payments made to individuals who ask for them 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. Councils should support people to use and manage the payment properly.

Reasonable adjustments

14. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a person who has a disability can use a service as close as it is reasonably possible to get to the standard usually offered a person who does not have a disability. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

Ordinary residency

15. Councils’ responsibility for meeting a person’s eligible needs under the Care Act 2014 is based on the idea of ‘ordinary residence’. There is no definition of ordinary residence in the Care Act. It is usually possible for councils to decide the person has lived in one place long enough, or intends to live there, to decide they have got an ordinary residence there.

Complaint handling

16. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. Councils should include in their complaint response:
• how they considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether they are satisfied all necessary action has been or will be taken by the organisations involved.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

17. The Council’s website states that all adult social care will be investigated by a senior manager. It states it will acknowledge the complaint within three working days and provide a written response within ten working days.
18. If the Council uses the corporate complaints procedure it will consider the complaint at stage one and stage two if requested by the complainant. Both stages will be completed within 20 working days.

What happened

19. Mr X is a young adult who has additional needs. At the time of this complaint he lived at home with his parents Mr and Mrs G. Mrs G supported Mr X with many areas of his life including managing his finances.
20. In 2017 Mr X became 18 years old. Mrs G asked the Council to assess Mr X’s adult care needs. The Council completed the assessment in July 2017. It recorded Mr and Mrs G provided informal support to Mr X. It recorded Mr X was able to express his wishes verbally but required support in making complex life decisions.
21. The assessment recorded Mr X had eligible needs for care and support in nine areas of his life. It recommended four hours a week personal assistance (PA) to help Mr X maintain a social life during term time and 12 hours during school holidays. This was an increase from the previous assessment of two hours per week during the holidays. The Council did not develop a care and support plan to show how the support would be provided. The personal budget was paid via direct payments to Mrs G who arranged the PA.
22. In April 2018 the Council arranged for the increased direct payment, backdated to September 2017, to be paid to Mrs G.
23. In August 2018 the Council agreed to fund 27 hours a week (for 39 weeks a year) of one-to-one support for Mr X while he attended a residential college four days a week. Mr X continued to receive the direct payments for PA support. The records do not show why the Council made this change.
24. Mrs G requested a review of Mr X care and support needs in February 2019. The Council met with Mrs X in March 2019. After the meeting Mrs G wrote to the Council setting out the support she said Mr X needed and how this should be provided. She said she was unable to sustain the level of support she provided to Mr X.
25. In August 2019 a social worker met with Mr X and Mrs G to review Mr X’s support needs. There is no record of the reassessment. The records show that Mrs G said Mr X had not had PA support since April 2019. The social worker said that an increase in direct payments could not be considered until they had reviewed the current support – which they could not do without a PA in place.
26. In December 2019 Mrs G requested the Council pay her for 23 hours a month for the support she offered to Mr X as she no longer wished to do it informally. She stated she drove him to a volunteering placement and supported him there and managed his direct payments. The Council offered to provide that support to Mr X which Mrs G did not accept. The social worker asked for an update on the PA and Mrs G confirmed one had been in post since August 2019.
27. In April 2020 the Council wrote to Mr X. It said it had revised the financial contribution he needed to make towards his care costs and told him the amount of his contribution. It said if the cost of care was lower than the contribution, Mr X would pay the full cost. Mr X’s PA support cost less than his contribution and so the Council said the direct payments stopped automatically.
28. A review meeting was arranged for May 2020. Mr X’s solicitor requested a copy of the care plan before the meeting so Mr X could prepare. The Council did not have a copy of the care plan and could therefore not provide it. It explained the purpose of the review meeting by email. Mr X did not attend.
29. In June and July 2020 there was correspondence between the Council, Mrs G and Mr X’s solicitor. The social worker explained that because Mr X was an adult, they must obtain his input into the review and would need to speak to him directly. Mr X, through his solicitor, stated he would like to be supported by Mrs G during that conversation.
30. The Council completed the assessment in July 2020. It recorded Mr X had left the residential college and was living with his parents. He had enrolled in a course from September 2020 at a college in Council B’s area and would live there. Mr X, supported by Mrs G expressed that he needed support with independent travel, living and budgeting skills. The assessment recorded Mr X needed support in areas of daily living which would be met via direct payments. These included:
• travel training;
• personal care;
• meal preparation; and
• accessing the community.
31. The Council produced a care and support plan that identified Mr X’s needs would be met via direct payments. It did not specify how the care should be provided.
32. The assessment recorded Mrs G was Mr X’s informal carer and he relied on her for his care needs. It stated the Council was considering completing an ordinary residency application to Council B to decide responsibility for meeting Mr X’s care needs when he moved to Council B’s area.
33. The Council sent Mrs G a copy of the assessment in August 2020 and asked for their comments.
34. In September Mrs G told the Council the placement at college had fallen through and Mr X was living at home. She said Mr X’s solicitor would contact the Council about the needs assessment.
35. In October 2020 Mr X’s solicitor emailed the Council. They said the assessment was no longer reflective of Mr X’s circumstances and Mrs G was not willing to provide informal support. The solicitor asked for the assessment to be amended.
36. The Council met with Mr X in January 2021 to discuss his needs. Afterwards the social worker resent Mr X the August 2020 assessment and asked him to tell her how his daily needs had changed.
37. In March 2021 Mr X’s solicitor provided comments on the August 2020 assessment. It stated:
• there was an over-reliance on the informal support offered by Mrs G;
• the assessment of Mr X’s needs overstated Mr X’s ability and therefore understated his needs; and
• Mr X had been without social care since July 2020 when he left the specialist college.
38. The Council told Mr X’s solicitor it would reassess Mr X’s needs and it believed his needs to be moderate. In recognition of Mr X not being in education it offered a further seven hours PA support via direct payments, twelve a week in total. Mr X declined and said he would await the outcome of the assessment.
39. The Council arranged an independent advocate for Mr X. This was declined by Mrs G on Mr X’s behalf.
40. The Council reassessed Mr X’s needs in June 2021. It noted Mr X’s communication difficulty. The assessment considered information from the speech and language therapist and the previous residential college. It considered the occupational therapists report and a letter from the NHS regarding Mr X’s mental health. The assessment recommended an increase from five to fourteen hours of direct payments for PA support. It stated the payments should be used flexibly to support Mr X’s social activities and care needs. It recorded Mrs G supported Mr X in managing his finances and in making complex decisions and she would be eligible to request respite once a PA had been arranged.
41. The social worker sent the assessment to Mr X in July 2021. They said they would present the assessment to the funding panel once Mr X had commented on it.
42. Mr X’s solicitor responded a month later and said the assessment was overestimating Mr X’s abilities. They requested direct payments for 41.5 hours PA support per week to meet Mr X’s needs, plus 35 nights a year respite for Mrs G.
43. In October 2021 the Council finalised the assessment. The assessment shows it considered the points raised by Mr X’s solicitor but did not amend the recommended support. The Council sent the completed assessment to Mr X in December 2021 after his solicitor requested a copy. Mr X did not accept the assessment or recommended support.
44. In January 2022 Mr X’s solicitor complained to the Council on Mr X’s behalf. They said the Council:
• failed to meet Mr X’s care and support needs and review those needs;
• failed to respond to the issues raised by Mr X and Mrs G;
• failed to make reasonable adjustments for Mr X’s disabilities and continued to ask to speak to him alone.
45. The Council responded in March 2022. The Council provided a timeline of events, prepared by the social worker. It did not address the points of complaint. It stated it considered the matter through the corporate complaints process and in line with adult social care complaints process.
46. Mr X’s solicitor asked the Council to consider the complaint at stage two. The Council declined to do so.
47. Dissatisfied with the Council’s response Mr X complained to us.
48. I have reviewed the correspondence between the Council and Mr X’s representatives; Mrs G and his solicitor. Although there were periods of time where correspondence was delayed, this occurred both from the Council and Mr X’s representatives. The Council shared the information it had available and answered the questions put to it.

My findings

Care planning and provision

49. The Council provided Mr X direct payments in 2017 to meet his eligible needs. The legislation states the Council should have reviewed the care and support in 2018. There is no record of a review or reassessment in the Council’s records. However, the package of support for Mr X was increased during 2018. On the balance of probabilities I find that a review was completed. The Council’s lack of accurate and complete records about the matter is fault and caused Mr X frustration when he later requested that information. However, there is no evidence the care Mr X received between 2017 and July 2020 when he left the residential college did not meet his needs.
50. Mrs G requested the Council review the package of support in 2019. The legislation states councils must conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one. The Council did not do so and that is fault. That caused Mr X frustration. However, at that time Mr X was at the residential college four days a week and receiving direct payments for five hours PA support a week. There is no evidence of a change in circumstances and that the support in place did not meet Mr X’s needs.
51. In 2020 the Council reassessed Mr X and identified he still had eligible needs. Because Mr X intended to move to Council B’s area the Council said it would explore ordinary residency with Council B. There is no evidence the Council took any action to do so. That was fault. It meant that Mr X was without sufficient support for his eligible needs between August 2020 and September 2020.
52. In September 2020 the Council knew Mr X was not living in Council B’s area. Because of the change in circumstances, it should have reassessed Mr X’s care and support package. It did not do so and that was fault. Mr X was therefore without appropriate care and support for his eligible needs from September 2020 until March 2021. This caused Mr X distress and impacted his wellbeing as he was unable to access social activities outside the home without Mrs G’s support.
53. The Council considered five hours PA support suitable to meet Mr X’s needs from 2018 onwards (along with other additional support). The Council funded this via direct payments to Mrs G. Because Mr X’s contribution to his care charges was higher than the charge for care, the Council stopped providing direct payments in April 2020. That was in line with the guidance. The PA support was always available but Mr X needed to pay for the service himself. The Council offered Mr X an additional seven hours PA support in March 2021 while it continued its assessment, which Mr X declined. There was no fault in the Council’s actions.
54. The Council reassessed Mr X’s needs in June 2021. The social worker considered all the available information and professional reports. The Council decided Mr X needed 14 hours PA support a week to meet his eligible needs, and Mrs X was eligible to request respite care. It did not rely on Mrs G meeting Mr X’s daily care needs, outside of acting as his financial agent and advocate. The Council considered Mr X and Mrs G’s representations. There was no fault in how the Council assessed Mr X’s needs. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
55. The Council finalised the assessment in October 2021 but did not provide Mr X a copy until his solicitor requested it in December 2021. The delay was fault and caused Mr X further frustration.

Reasonable adjustments

56. The Council records show it was aware of Mr X’s communication and comprehension difficulties as a result of his disability. It provided Mr X or his representatives information in advance of meetings where it was able to and referred Mr X for an independent advocate to support him. The Council asked to speak with Mr X alone to gather his wishes and feelings which is appropriate as Mr X is an adult. The Council did not prevent Mrs G from supporting Mr X when he requested that she do so. The Council considered and made appropriate reasonable adjustments for Mr X’s disability. The Council was not at fault.

Complaint handling

57. It is unclear if the Council considered Mr X’s complaint through the adult social care or corporate complaint route. There is no evidence the complaint was investigated by a senior manager. That was not in line with the Council’s own policy and was fault. If it used the corporate route the Council should have considered the complaint at stage two. If it used the adult social care route it should have responded within ten days, not the 21 it took. It caused Mr X frustration that his complaint was not been properly considered by the Council.

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Agreed action

58. Within one month the Council will:
• write to Mr X and apologise for the frustration, inconvenience and distress caused to him by its poor record keeping, failure to review and meet his eligible care needs in line with the legislation, and failure to properly consider his complaint about the matter;
• pay Mr X £200 to recognise the frustration caused to him; and
• pay Mr X £1000 to recognise the distress caused to him by the eight months between August 2020 and March 2021 when the care and support provided by the Council did not fully meet his eligible needs.
59. Within three months the Council will:
• remind relevant adult social care staff of the importance of keeping clear and accurate records of statutory documents such as assessments and care plans;
• remind relevant adult social care staff to ensure care and support plans are reviewed in line with the timelines set out in legislation and when an appropriate request is made; and
• remind staff members who handle complaints of the differences between the adult social care and corporate complaint policies and their responsibility within each.
60. The Council will provide us with evidence it has done so.

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Final decision

61. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman