Summary: The complainant’s representative (Mrs X) complained about the Council’s failings when providing her son (Mr Y) with adult social care services and when charging him for care. We find the Council at fault for its failure to provide Mr Y and Mrs X as his main carer with a reviewed care and support plan and for its failure to make reasonable adjustments for Mr Y. This caused Mr Y injustice. We also find fault within a safeguarding process but this did not cause significant injustice to Mr Y. The Council agreed to apologise to Mr Y and make a payment for his distress. The Council also agreed to make some service improvements.

The complaint

1. Mrs X acting on behalf of her son Mr Y says the Council, when providing Mr Y with care service, failed by:
• Removing his possessions without any risk assessments being carried out;
• Not involving him and his parents in the important decisions about his care, including his supported living accommodation;
• Lack of transparency with care charges;
• Ignoring his feelings towards a particular social worker;
• Sharing false information with the housing team.
2. Mrs X also says the Council failed to investigate his complaint and the Council’s response contains factual errors.

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What I have investigated

3. I have investigated matters complained about in the first three bullet points of the paragraph one of this decision.
4. I have also investigated the way the Council dealt with Mrs X’s complaint.

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The Ombudsman’s role and powers

5. 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)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
10. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
11. 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)
12. 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

13. I spoke with Mrs X and considered the information she provided.
14. I made enquiries with the Council and considered the information it provided.
15. I reviewed charging information from the Council’s website, its Health and social care services charges document and its Adult Social Care and Health Complaints Policy and Procedures.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
17. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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What I found

Legal and administrative framework

Care and support plans

18. Councils have a legal responsibility to provide a care and support plan. 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. 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 S.24)
19. Councils should keep care and support plans under review. These reviews should take place at least every 12 months. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. (Care Act 2014 Section 27, Care and Support Statutory Guidance)

Charging

20. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. (Care and Support statutory guidance paragraph 8.16)
21. In carrying out financial assessments councils must have regard to the detailed guidance setting out how both capital and income should be treated. (Care and Support statutory guidance paragraph 8.17)
22. Councils must ensure a person’s income is not reduced below a specified level after charges have been deducted. This is called the minimum income guarantee. The purpose of this is to ensure the person has enough money to pay their daily living costs such as rent, food and utility bills.  In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure that they keep enough money to cover the cost of meeting these disability-related costs. (Care and Support statutory guidance paragraph 8.42)

Risk assessments

23. Registered social care providers must assess the risks to the health and safety of service users receiving the care or treatment and do all that is reasonably practicable to mitigate such risks. They are also responsible for the proper and safe management of medicines. (The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 regulation 12)

Social care standards

24. When carrying out their activities or functions councils must have regard to the general principle of promoting wellbeing as well as:
• beginning with the assumption that the individual is best placed to judge the individual’s wellbeing;
• the individual’s views, wishes, feelings and beliefs;
• the need to ensure that decisions are made having regard to all the individual’s circumstances;
• the importance of the individual participating as fully as possible; 
• the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary.

(Care and Support statutory guidance paragraph 1.14)

Council complaint procedure

25. 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. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

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

Equality Act 2010

26. 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 disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.

Key facts

Background

27. Mr Y is 25 and has an Autistic Spectrum Disorder (ASD), the type identified as Asperger Syndrome.
28. Mr Y is considered to have mental capacity to make decisions about his care and support. This was confirmed within his care needs assessments and care and support plans.
29. Mr Y moved to his current Supported Living Accommodation (the Supported Living) nearby his parents’ house, although in the neighbouring council to theirs, in September 2019.
30. In March 2020 the Council reviewed and amended Mr Y’s care and support plan. Mr Y’s parents took part in the review process as his carers. The Council did not send a copy of the care and support plan to Mr Y or his parents.
31. Mrs X and her husband (Mr X) were happy about Mr Y’s move to the Supported Living. They stressed the importance of predictability of support for Mr Y.
32. Mrs X holds a Lasting Power of Attorney for Mr Y.

Social Care involvement from April 2021 till April 2022

33. In April 2021 Mrs X and Mr Y’s Social Worker exchanged correspondence about Mr Y’s education and recent presentation. Mrs X communicated her concern about discovering Mr Y did not have right pans to use his cooker, which had not been picked up by his Care Provider since he first moved to the Supported Living.
34. At the end of June 2021 Mrs X contacted Mr Y’s Social Worker with some further concerns around his support:
• Lack of suitable support at the assigned times and Mr Y’s confusion about the staff who would be supporting him;
• Staff supporting Mr Y not using his Asperger’s plan;
• Mr Y’s loss of weight caused by the lack of well-balanced diet;
• Mrs X’s concerns about Mr Y’s financial assessment.
35. In July 2021, in response to these concerns, the Council carried out a review of Mr Y’s care needs and support arrangements. The Council prepared a new social care assessment document for Mr Y following the review, identifying actions which would address the areas of concern. The Council did not send this document to Mr Y or his parents.
36. At the end of July Mrs X contacted her own council, which is next to Mr Y’s, explaining Mr Y’s circumstances and enquiring on the possibility of transferring Mr Y to a supported living placement in its area. Mr Y’s Social Worker was aware of this correspondence.
37. From July to November Mrs X and Mr Y’s Social Worker often communicated about Mr Y’s medical appointments and various incidents in the Supported Living.
38. In the autumn of 2021 Mrs and Mr X several times contacted the Council or the Service Provider about the care Mr Y was receiving. The Council dealt with their concerns through its safeguarding processes.
39. In November 2021 a Safeguarding Implementation and Monitoring meeting took place. The purpose of this meeting was to discuss care provided to Mr Y and any issues with the staff. Mrs and Mr X, council representatives including Mr Y’s Social Worker and the Supported Living staff took part in this meeting.
40. One of the actions identified as the way to resolve current difficulties was improving communication between the Care Provider and the family to avoid a risk of manipulation. The outcomes of the meeting were shared with Mr Y.
41. At the end of November the Care Provider raised a safeguarding concern about potential financial abuse committed against Mr Y. The Supported Living staff also reported to the Council other incidents in which Mr Y was a party.
42. At the end of December, following the incident which ended with the Police intervention, the Council carried out a risk assessment for Mr Y. One of the actions aimed at reducing risk to Mr Y, support staff, other residents of the Supported Living and wider community was to ensure all sharp tools were removed from Mr Y’s flat and kept in the office. Mr Y would be provided with support when using a knife for food preparation and eating. The Supported Living staff discussed the risk assessment with Mr Y but did not share the document with him or his parents.
43. In December 2021 Mr Y’s Social Worker changed. Mrs X was very upset after the telephone conversation with the new Social Worker as she found her rude and uncooperative.
44. Throughout the first months of 2022 the relationship between the Council and Mr Y’s parents deteriorated further. The Council had concerns about the way Mrs and Mr X performed their carers’ duties regarding Mr Y’s financial interests. The Council’s social care staff also reported Mr Y’s refusal to engage with them. Mr Y allegedly claimed his parents advised him not to speak to the members of the Council’s staff.
45. The Social Worker booked a home visit with Mr Y in the beginning of January 2022 but cancelled it in the last moment, despite Mrs and Mr X’s pleas to complete the visit.
46. At the end of January the Social Worker met up with Mr Y’s parents and his behaviour therapist to review his support plan. After this meeting she provided Mrs X with the details of Mr Y’s key workers, details of his support package following the risk assessment and plan for developing Mr Y’s independent living skills within the support hours each weekday. The Social Worker mentioned there would be another meeting the following week with Mr Y and his Care Provider key workers to re-assess Mr Y’s care needs and prepare a new care and support plan.
47. There was some confusion about this second meeting as the Supported Living staff told Mr Y about the meeting which in fact was not confirmed by the Social Worker. After she received an email from Mr Y, the Social Worker told him she would be meeting him and the Care Provider staff the following day. Mrs X told us she and Mr Y’s behaviour therapist came to the meeting, as Mr Y was very stressed and asked them to support him. Mr Y’s Social Worker refused to carry out the visit in Mrs X’s and Mr Y’s therapist’s presence.
48. A month later the Social Worker invited Mr Y to meetings to review his social care and support needs as well as his accommodation. Mr Y’s parents were copied into the email. The second meeting was to take place at the alternative supported living setting. The next day, after receiving confirmation from Mr Y’s parents they would attend, the Social Worker cancelled both meetings.
49. A few days later the Head of Social Work Working Age contacted Mr and Mrs X stating, that although the review meetings had to be cancelled, the social care team identified a new provider who would like to meet Mr Y on one of the dates set up originally for a review meeting. Mrs X was confused with the contradictory emails received from the Social Worker and the Head of Social Work Working Age and asked the Social Worker to clarify whether any meetings were taking place. The same day the Social Worker responded apologising for the confusion and stating all the meetings were cancelled.
50. In her complaint to the Council sent a few days later, Mrs X raised the issue of the Council identifying a new provision for Mr Y without his involvement.
51. In the response to my enquiries the Council said:
• It had recently appointed an independent advocate to support Mr Y with decision making independently of the Council and his family;
• It has been finding it increasing difficult to engage in the meaningful communication with Mr Y and his parents;
• Following multiple incidents and attempts to resolve the difficulties, everybody seemed to agree the current Care Provider was not suitable for Mr Y. Mr Y supported by his parents has, however, refused a suitable alternative care offer which the Council believes to be in Mr Y’s best interest;
• The Council has recently applied to the Court of Protection to seek resolution on the progress of a new placement for Mr Y.

Care charges

52. The Council carried out Mr Y’s financial assessments in April 2019, March 2020, March 2021 and April 2022.
53. In response to Mrs X’s ask for a new financial assessment in July 2021 the Council sent her a blank financial assessment form, a breakdown of the last two financial assessments and a charges spreadsheet detailing the Council’s current charges for care.
54. During Mr Y’s care needs review in July 2021 the Council stated the cost of an hourly support for Mr Y in his Supported Living was £14.27, which every week amounted to £271.13.

Complaint process

55. In mid-February 2022 the Head of Social Work Working Age talked to Mr X about his concerns and in the second week of March the similar conversation took place with Mrs X. The meeting was scheduled to discuss all the issues Mrs and Mr X were not happy about.
56. In mid-March the Head of Social Work Working Age emailed Mrs X:
• Cancelling the meeting due to the staffing problems caused by COVID;
• Confirming the agreement the Care Provider was no longer suitable for Mr Y;
• Replacing the meeting which was planned to discuss Mrs and Mr X’s complaint with the meeting at the new placement which could be an alternative to Mr Y’s current one. This meeting did not take place, as explained under paragraph 49 of this decision.
57. A few days later Mrs X complained to the Council.
58. Five days after the date first pointed out as the deadline for the Council’s response and after a chasing email from Mrs X, the Council provided its response to Mrs X’s complaint. Apart from addressing the issues raised by Mrs X the Head of Social Work Working Age proposed an action plan.
59. Mrs X was unhappy with the Council’s response and pointed out:
• Despite the Council’s claims there was no up-to-date risk assessment for Mr Y;
• Charging fees provided by the Council do not make sense.
60. The Council suggested it might be possible to review Mrs X’s complaint but stated the decision would be made by the person handling Mrs X’s complaint after considering the Council’s review criteria:
• Reasons for dissatisfaction;
• Whether this is a new complaint;
• Whether there is any new information.
61. A few days later the Council said it would not be reviewing Mrs X’s complaint as there were no grounds for doing so. The Council, however, registered some of the issues raised by Mrs X in her recent correspondence as a new complaint.
62. In the beginning of May the Council responded to Mrs X’s additional issues, providing reasons for not upholding her complaint.

Analysis

Investigation time limits

63. Some events referred to by Mrs X go back more than 12 months from the date she complained to us. I can see no good reasons to include them in my investigation and therefore looked at what happened between April 2021 and April 2022.

Mr Y’s involvement in making decisions about his care and support

64. We did not find fault in the way the Council involved Mr Y and his parents when deciding about his care and support. There is evidence of a regular communication between Mr Y, his parents and the Council. I specifically refer to:
• Communication between Mrs X and Mr Y’s Social Worker in April 2021;
• Review of Mr Y’s care needs in July 2021 to address Mrs X’s concerns;
• Communication from July to November about Mr Y’s medical appointments and safeguarding incidents;
• Safeguarding Implementation and Monitoring meeting taking place in November;
• Planning Mr Y’s care and support plan review for February 2022 (this in fact did not happen as the Social Worker refused to carry out a meeting with Mr Y with Mrs X and his behaviour therapist present).
65. Mr Y’s and his parents’ views are recorded in care documents and meeting notes. Eventually, after the increase of difficulties between the Council and Mrs X as well as Mr Y’s refusal to engage with social workers, the Council appointed an advocate for Mr Y to ensure his true wishes and feelings were heard.
66. Although Mrs X remained unhappy about Mr Y’s care, the Council tried to address her concerns by reviewing his support, discussing ways of overcoming difficulties and considering safeguarding referrals.
67. The Council was aware of Mrs X’s attempts in the summer 2021 to find a new supported living place for Mr Y. Once the number of safeguarding incidents increased throughout the autumn and winter months, the Council accepted Mr Y needed an alternative placement. Therefore it was reasonable for the Council to look for other supported living placements. Arranging a meeting in March 2022 in one of these cannot be seen as an attempt to place Mr Y there without his agreement.
68. When exploring concerns about Mrs X as her son’s carer and considering Mr Y’s mental capacity to make decisions, it was not unreasonable for the Council at times to communicate only with Mr Y.

The Council’s failings when performing its duties towards Mr Y

69. The Council failed to provide Mr Y and Mrs X with a copy of his care needs and support plan reviewed in July 2021. This is fault which caused Mr Y injustice as he could not verify what changes were made in his support arrangements following the review. Although Mr Y’s verbal agreement with the assessment summary and plan of actions is recorded in the document, in view of his difficulties stemming from ASD it was even more critical that he received his new support arrangements in writing.
70. I also found when dealing with Mr Y the Council did not always consider his needs associated with ASD. This happened when meetings were cancelled at short notice, arrangements changed in the last minute and there was not enough effort to prepare Mr Y for meetings or discussions. This is fault. The Council failed to consider implementing reasonable adjustments to overcome Mr Y’s difficulties in the use of social care services. This caused Mr Y injustice by contributing to the deterioration in his relationship with the Council staff and his distress.

Transparency of care charges

71. I do not find fault in the way the Council charged Mr Y for his care. Every year in the spring the Council carried out financial assessment for Mr Y, following the correct process. In view of Mrs X’s concerns about charging, the Council re-assessed Mr Y’s financial circumstances in July 2021. After carrying out financial assessments the Council provided Mrs X with the details of charges for non-residential services for Mr Y.
72. The Council told Mrs X about the cost of Mr Y care and how much he was expected to contribute. This satisfied the requirement for transparency.

Risk assessment

73. When Mrs X became aware of the Care Provider’s interference with Mr Y’s use of his accommodation through the removal of sharp objects and medication from his room, she complained. She was unaware of the risk assessment which took place in December 2021. Mr Y and Mrs X did not receive a copy of this risk assessment. This is fault.
74. In its response to my further enquiries the Council suggested it was the Care Provider’s responsibility to carry out the right process when conducting a risk assessment. If, however, the Council performs it duties under the Care Act 2014 using the services provided by a third party, it remains responsible for the way they are delivered. Mrs X told the Council about her unawareness of the risk assessment so it would be reasonable to expect the Council to make enquiries and ensure any failings are remedied.
75. I do not think, however, the Council’s fault caused significant injustice to Mr Y and Mrs X for the following reasons:
• When the Care Provider, acting on behalf of the Council, identified risks and looked for the ways to mitigate them it was in compliance with the legislation quoted under paragraph 23 of this decision;
• Mr Y and Mrs X knew about many incidents which triggered safeguarding referrals so were aware of the need to mitigate risk to Mr Y, the Care Provider staff and other residents of the Supported Living;
• Had the fault not occurred, the outcome of the risk assessment would have been the same.

Complaint process

76. When handling Mrs X’s formal complaint raised in March 2022, the Council acted in accordance with its complaint policy. In particular:
• The Council’s complaint response included an action plan aimed at resolving issues raised by Mrs X;
• Following Mrs X’s dissatisfaction with the Council’s response the Complaints Team considered whether there were any grounds to revisit some or all elements of the complaint;
• Although the Council decided not to revisit Mrs X’s complaint, it identified some new issues which it considered separately and responded to in the beginning of May 2022.
77. The delay of a few days in providing the Council’s response to the complaint is not significant enough to be considered fault.

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Agreed action

78. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of my final decision completes the following:
• Send a written apology to Mr Y;
• Pay Mr Y £300 to recognise his distress.
79. We also recommend the Council within three months of the final decision completes the following:
• Consider the increase in monitoring of care needs assessments and re-assessments as well as care and support plans being sent to service users;
• Consider introducing more prominent recording of any reasonable adjustments required by service users in the assessment or re-assessment documents as well as care and support plans.

The Council will provide the evidence that this has happened.

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Final decision

80. I find fault in the way the Council carried out its adult social care duties towards Mr Y by not providing him with a reviewed care needs and support plan and by not making reasonable adjustments for his Autistic Spectrum Disorder needs. This caused him injustice. I find fault within the safeguarding process but it did not cause significant injustice to Mr Y. I do not find fault with other issues of this complaint. The Council accepted my recommendations, so this investigation is now at an end.

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Parts of the complaint that I did not investigate

81. I did not investigate whether the Council should have changed Mr Y’s Social Worker following Mrs X’s concerns about their conduct. Our role is to investigate the Council’s actions as a corporate body, rather than an individual. If Mrs X has concerns about the professionalism or conduct of an individual social worker, she can report his concerns to their professional body, Social Work England.
82. I did not investigate whether the Care Provider breached fundamental standards of care. The Care Quality Commission is better placed to decide on these issues.
83. I did not investigate whether there were any failings in the way the adult social care team shared information about Mr Y with the housing team. The Information Commissioner is better placed to consider potential breaches of data protection and there are no good reasons for us to investigate this.

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Investigator's decision on behalf of the Ombudsman