Summary: The Council was at fault when it proposed to significantly reduce Ms X’s care package by transferring most of the responsibility for providing her care to children’s services. The Council’s recommendation to reduce Ms X’s care hours was not made in line with the Care Act Regulations and failed to have due regard to her human rights. This led to a period of avoidable distress and uncertainty for Ms X, during which time she feared she would not be able to care for her child. The Council has agreed to pay Ms X £500 to reflect the serious avoidable distress she was caused. It has also agreed to carry out our recommended service improvements to prevent repetition of faults affecting others.

The complaint

1. Ms X complains the Council:
1. reduced the hours of care she receives without considering the impact this would have on her wellbeing and her being able to care for her daughter; and
2. failed to provide all the care hours she was assessed as being entitled to.
2. Ms X said this caused her many months of worry and uncertainty about how she would care for her daughter. She instructed a solicitor to halt the Council reducing the care hours in the way proposed and she suffered a mental health crisis leading to her taking an overdose.

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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 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)
5. 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.
6. 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)
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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How I considered this complaint

8. I considered the information provided by Ms X and the Council.
9. I considered the relevant law and guidance as set out below.
10. I considered our Guidance on Remedies
11. I considered all comments made by Ms X and the Council on draft decisions before making a final decision.

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What I found

Law and guidance

Assessments and eligibility for adult social care

12. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support.
13. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve.
14. To be eligible for care and support assistance the adult should be unable to achieve at least two of the specified outcomes below, due to a physical or mental impairment or illness.
15. These outcomes include but are not limited to:
• being able to make use of their home safely;
• developing and maintaining family or other personal relationships; and
• carrying out any caring responsibilities they have for a child.
16. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment and how they will be met.
17. Periodic reviews of care plans must not be used to arbitrarily reduce a care and support package. (Care Act 2014, The Care and Support (Eligibility Criteria Regulations 2015))

Section 17 of the Children Act 1989

18. Councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

Human rights

19. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to.
20. Article 8 of the Act sets out the right to respect for private and family life, home and correspondence. This is a qualified right. The Act requires councils to respect and protect individuals’ rights.
21. The courts in Conors v UK (2004) described Article 8 rights as being, ‘of central importance to the individual’s identity, self-determination, physical and moral integrity’.
22. It is not our role to decide whether a council has breached the Human Rights Act, this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in their treatment of them, when considering a complaint.

What happened

23. Ms X has several medical conditions which significantly affect her mobility, dexterity, and balance. Due to her physical health issues, she requires some care which she receives at home.
24. Ms X’s need for care increased significantly when her child was born in 2019, as she required support with many of the physical aspects of parenting. From November 2019, the hours of care that she was assessed as needing increased, from 15 hours per week, to 105 hours per week.
25. In May 2021 the Council’s adult social care department carried out a scheduled assessment of Ms X’s care needs.
26. The assessment listed many outcomes that Ms X was unable to achieve without support. Ms X therefore qualified as having eligible care needs. This included, ‘carrying out any caring responsibilities the adult has for a child’.
27. The Council’s adult social care assessor identified no concerns regarding Ms X’s parenting, only that due to her physical health conditions, she required support at home to meet the physical aspects of caring for a child.
28. However, the assessor recommended that Ms X’s care package be reduced. The assessor said this was necessary because most of the hours each week that Ms X were entitled to, were because of her caring responsibilities for her child. The assessor said therefore that the majority of funding for Ms X’s care would no longer come from the adult social care team, ‘as the team does not support children’.
29. The assessor recommended that the care hours provided by adult social care be reduced from 105 hours per week to 28 hours per week and that the Council’s children’s services department carry out a child and family assessment. The Council gave no assurance that children’s services would make up the shortfall in care, or set out when the proposed reduction in Ms X’s care hours would start.
30. During this time Ms X said she was very anxious about what the Council had told her, as she did not know when her care hours were scheduled to be reduced and therefore whether she would be able to care for her child safely. No care was actually reduced or removed during this time, but Ms X spent several months reasonably expecting it to happen following the outcome of the May 2021 assessment.
31. While children’s services and adult social care were still in discussions regarding responsibility for funding the care Ms X needed, in August 2021 Ms X took an overdose and was taken to hospital. Following this incident, a ‘child in need’ meeting was held.
32. In the coming week an adult social care panel was due to meet to discuss and potentially implement the reduction in Ms X’s care funding. A social worker within the Council asked for this process to be temporarily halted. Ms X also instructed a solicitor who wrote to the Council. They said any removal of adult social care for Ms X at this stage would be unlawful and would be subject to legal challenge.
33. The solicitor said children’s services had not agreed to provide the care Ms X needed. Therefore, Ms X and her child would be put at risk if adult social care reduced the hours. They also highlighted that Ms X had an entitlement to adult social care in her own right - to meet the eligible outcome of caring for her child - according to the Care Act Regulations.
34. The care remained in place and the children’s services team concluded their assessment. They said the child was now starting nursery and there were no safeguarding concerns. They said going forward, the support for the family should come from adult social care.
35. In January 2022, Ms X complained to the Council. She said she had been caused distress since May 2021 due to not knowing where her care would come from or if it would be reduced. She said this caused her to experience a mental health crisis.
36. Ms X also said she had been told by a social worker that she should be receiving 105 hours of care per week to assist with the physical aspects of parenting, with 15 hours per week on top of this, for her own care needs, making a total of 120 hours per week. Ms X said she had never received this amount of care.
37. The Council responded two weeks later to say that any plans to reduce her care hours had been put on hold pending the outcome of a formal review. It also said it agreed with her concerns regarding the reduction in care and it was ‘encouraging’ that this decision was now subject to review.
38. The Council did not respond to Ms X’s complaint that she had been receiving an incorrect number of hours of care per week.
39. In February 2022, adult social care reviewed Ms X’s care needs again. This review identified, as the previous assessment had, that Ms X had several eligible outcomes that she required support to achieve including caring for her child.
40. It noted that she was now experiencing mental health issues and had recently taken an overdose following a decision by adult social care to reduce her care package. However the assessor recommended again in this review that the funded care hours be reduced.
41. The assessor repeated the position of the May 2021 assessment and said most of Ms X’s funded hours ‘are due to her parenting responsibilities’. Therefore, the assessor said they would make a referral to children’s services to re-assess the case and request that it provide funding for the care needed.
42. Several weeks after this assessment, adult social care made a child in need referral to children’s services. It requested an urgent assessment of the child’s needs because it said it was in the process of reducing Ms X’s care package. Adult social care said this will make the child a ‘child in need’ and impact the child’s wellbeing.
43. Ms X complained to the Council regarding the Council’s proposal to again reduce her care hours. The Council responded to her complaint at stage two of the complaints process simply by saying the review of her care package had now been finalised.
44. Ms X provided us with a copy of an email she received from a social worker at the Council who said their understanding of Ms X’s care hours was that she should receive 105 hours towards the care of her child and a further 15 hours per week for herself.
45. As part of this investigation I reviewed documents regarding Ms X’s agreed funded care hours. From the time this rate of care was first agreed - in 2019 - to date, the documents show Ms X’s funded care hours as 105 hours per week which is broken down as 90 hours per week towards the care of her child and 15 hours per week for her own care.
46. To date, Ms X’s care hours still have not been reduced and she receives 105 hours of care per week. Despite the recommendations from the February 2022 review of Ms X’s care needs, the Council told us that adult social care would continue to provide this amount of funded care hours unless circumstances change.

My findings

Complaint 1a) proposed reduction in care hours

47. According to the Care Act Regulations, the Council had to consider whether Ms X needed support to carry out caring responsibilities for her child as one of at least two outcomes necessary, in determining her eligible care needs. Having done so it should have developed a care and support plan to meet those needs with a financial assessment of her ability to contribute to meeting provision.
48. The Council assessed that she required support to care for her child safely due to needs arising from her physical disability. However the Council’s adult social care team instead sought to transfer this responsibility to children’s services twice in a period of nine months.
49. The second time it recommended reducing the care package, it did so despite recent legal challenge. It also did so in the knowledge that children’s services had concluded months earlier that it was not responsible for providing the care. It repeated its mistake and the Council did not provide person centred care and support planning to Ms X, as required by the Care Act. Even though there was no disruption to care, the Council should not have allowed the disagreement between its departments about responsibility to impact on Ms X. The Council was at fault.
50. The Council gave Ms X no timeframe for reducing her care hours in the way it proposed and gave no assurance regarding how her eligible care needs would continue to be met. While adult social care and children’s services negotiated which service would fund the care, she did not know whether she would lose the care soon or further in the future. The lack of corporate ownership of the situation by the Council and consequential failure to give clear messages about continuity meant Ms X understandably suffered severe, avoidable anxiety. The Council was at fault.
51. The Council also failed to have due regard to Ms X’s Article 8 rights when it completed these two assessments. The Council’s assessments identified that she needed support with the physical aspects of parenting but it said she had no right to this amount of support from adult social care.
52. Ms X therefore reasonably feared, that in the near future, the Council would cease to protect her right to a family and private life. This was a significant fear for Ms X to have, especially while caring for a very young child. The Council was at fault.
53. Ms X experienced a mental health crisis leading to hospitalisation during this time. I cannot say the Council’s faults directly led to this. However it is evident that the faults in this case caused Ms X many months of avoidable distress and significant uncertainty.

Use of the child in need referral process

54. The Council’s adult social care department made a child in need referral to the children’s services department, asking for an urgent child and family assessment to be carried out, due to its intention to reduce the care package.
55. This meant Ms X was the subject of a parenting assessment, despite the Council having identified no concerns regarding her parenting beyond her needs arising from her disability. The use of a child in need referral to negotiate financial responsibility for care hours between two council departments was inappropriate and not the person-centred care and support planning expected by the Care Act and guidance.
56. This negotiation could have been managed through conversations between council professionals, instead of involving Ms X directly and in such an emotive way. The Council was at fault.
57. This fault contributed further to the avoidable uncertainty and distress Ms X was caused by the Council’s actions.

Complaint 1b) number of agreed care hours

58. One of the Council’s social workers told Ms X in an email that she should be receiving 105 care hours per week for her needs relating to the child and 15 hours per week solely for her own needs, making a total of 120 hours per week.
59. However, none of the other evidence I have seen supports this view. In multiple documents I have reviewed from November 2019 to date, the breakdown of care hours is consistently shown as 90 hours per week for needs relating to the child and 15 hours per week solely for Ms X’s needs, making a total of 105 hours.
60. On the balance of probabilities, I have concluded that the social worker was mistaken in their understanding of Ms X’s care hours. This raised Ms X’s expectations and she was put to time and trouble in unnecessarily making a formal complaint about this. The Council then did not address this issue in its formal complaint responses. I have recommended a remedy in recognition of this.
61. However the Council was not at fault for failing to provide all of Ms X’s agreed hours.

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Agreed action

62. Within one month of the date of the final decision, the Council has agreed to:
• A) apologise to Ms X for repeatedly telling her that adult social care was not responsible for providing support to enable her to care for her child, and for the period of significant uncertainty and distress this caused her;
• B) apologise to Ms X for giving her incorrect information in an email regarding her care hours, for putting her to time and trouble in raising this through the complaints process and then for not responding to these concerns during the complaints process; and
• C) pay Ms X £500 to reflect the period of severe uncertainty and distress she was caused regarding how she would safely care for her child.
63. Within three months of the date of the final decision, the Council has agreed to:
• D) investigate what prompted the council officers carrying out these assessments to believe that adult social care did not have the responsibility to fund Ms X’s eligible needs around caring for her child;
• E) hold a lessons learned meeting within adult social care to ensure against this happening in future;
• F) remind all adult social care staff of the Council’s duties in relation to eligible outcomes under the Care Act Regulations 2015, in particular the outcome of caring for a child; and
• G) remind all adult social care staff of the Council’s duty to have regard to Article 8 of the Human Rights Act which protects people’s right to respect for family and private life, sets out the limited circumstances in which a public authority can interfere with this, and the relevance of this when assessing the care needed for disabled adults to care for their children.
64. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to a financial remedy and several service improvements.

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Investigator's decision on behalf of the Ombudsman