Summary: Mr F complains the Council failed to put his care and support in place, causing him to lack support and causing distress to him and his family who have had to care for him. We found fault which caused injustice to Mr F and his family. The Council has agreed to make a payment to them to remedy this, issue an updated care and support plan and consider whether a mental capacity assessment is necessary.

The complaint

1. Mr F complains through his father, Mr J, the Council:
1. Failed to put in place the care and support required to meet his needs when he finished his residential college placement in July 2022.
2. Delayed providing him with information and advice about local services for eight months.
3. Has wrongly assumed he lacks mental capacity.
2. This has caused himself and his family significant distress and anxiety. His family have had to provide him with care, resulting in exhaustion and affecting their health and employment.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 spoke to Mr J about his son’s complaint and considered the information he sent, the Council’s response to my enquiries and the Care and Support Statutory Guidance (“the Guidance”).
6. Mr F 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

Care and support assessments and plans

7. The Care Act 2014 requires 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.
8. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
9. If the assessment finds a person has eligible needs, the Council must meet those needs. It is not required to meet any needs being met by a carer.
10. Councils have a legal responsibility to provide a care and support plan. The care and support plan should set out 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. 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. The council must take all reasonable steps to reach agreement with the person for whom the plan is being prepared. In the event that the plan cannot be agreed with the person, or any other person involved, the council should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. This may require going back to earlier elements of the planning process. People must not be left without support while a dispute is resolved. If a dispute still remains, and the council feels that it has taken all reasonable steps to address the situation, it should direct the person to the local complaints’ procedure. (Care and Support Guidance, para 10.86)
12. Upon completion of the plan, the council must give a copy of the final plan to the person for whom the plan is intended, any other person they request to receive a copy. This should not restrict local authorities from making the draft plan available throughout the planning process.

Information and advice about care and support

13. The Guidance says councils must establish a service to providing people with information and advice relating to care and support for adults and support for carers in its area. But this is distinct from the duty to meet eligible needs. The council should consider following a needs assessment whether to provide information and advice to meet a person’s needs. (Care & Support Guidance, paras 3.2 & 3.4)
14. Lancashire County Council has information about its care services and services provided by others available from its website. It also operates a Care Navigation service to help people find appropriate care services.

Transition from education to adult care and support

15. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. When a young person’s EHC plan is due to come to an end, councils should plan the support the young person will be receiving across adult services. The local authority should use the annual review prior to ceasing the EHC plan to agree the support and specific steps needed to help the young person to engage with the services and provision they will be accessing once they have left education.
16. This transition to ongoing health and/or care support should be planned with timescales and clear responsibilities and the young person should know what will happen when their EHC plan ceases. (SEND Code of Practice, para 8.78)

Mental Capacity

17. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
18. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. The Code of Practice says councils must assess someone’s ability to make a decision when that person’s capacity is in doubt.
19. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
20. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.

What happened

21. Mr F has severe autism, communication difficulties and anxiety disorder. He had an EHC plan and had been attending a residential specialist college since he was 19. This placement was due to end in July 2022 when Mr F was 22 years old. Mr F would then move back home to live with his parents.
22. Mr F had been receiving direct payments to pay for personal assistants, respite and community activities since 2018. These were managed by his parents following a SEND Tribunal decision.
23. There was an annual review of Mr F’s EHC plan in November 2021. The Council said it would assess his adult care and support needs as he would be leaving education. Mr J chased the Council about this in February 2022 as he had not heard anything. The Council allocated a social worker to Mr F. It notified him on 3 March 2022 that it would be ceasing his EHC plan.
24. The social worker emailed Mr J on 4 March saying she would complete the assessment before sending him information about available resources. This was because she needed to identify what would be appropriate.
25. The social worker visited Mr F and Mr J on 11 March at his home. The case records show that she advised she had had access to Mr F’s EHC plan, annual review report and previous social care assessments. Following her visit, the social worker sent Mr J a form so that he and Mr F could complete a supported self-assessment. This was because Mr F had been unable to engage in the face-to-face assessment.
26. Mr J submitted the self-assessment on 2 April but asked the social worker to wait until an occupational therapist had completed their assessment. In May the social worker visited Mr F at college as part of her assessment. Mr J submitted the occupational therapy report on 20 May.
27. The social worker advised on 25 May that she would issue her assessment soon and also that in her view there should be a mental capacity assessment of Mr F to see if he had capacity to make decisions about his care and accommodation. This was because in the self-assessment Mr F had said he had difficulties with understanding and with making and expressing decisions. He had also ticked “yes” in response to the questions “do you have any difficulties with understanding and/or retaining information and “do you have any difficulties making decisions and/or understanding their impact.”
28. The Council sent the final assessment to Mr J on 21 June. It apologised it had taken some time to complete. The assessment said Mr F had eligible needs and had had direct payments to fund two personal assistants. He wanted support from local groups and activities and respite for Mr J and his mother.
29. The care and support plan at the time says Mr F should receive direct payments to fund 15 hours of personal assistant support per week (term time) and 30 hours during holidays; 20 nights respite per year, monthly occupational therapy sessions, and support for community activities (such as violin lessons and art therapy).
30. Mr J was dissatisfied with the assessment and submitted comments and queries. He said the assessment wrongly categorised Mr F as having a learning disability, did not include the occupational therapist’s provision or an education view from the annual review.
31. The Council agreed to reassess Mr F. In response to my enquiries, it said it accepted that the original assessment did not sufficiently record his social care needs.
32. The Council also said the “Service User Group” section of the care and support assessment records the nature of someone's disability. This allowed autistic spectrum conditions to be recorded. The primary and secondary support reason sections of the assessment do not include a category for autism. Mr F’s primary support reason had since been changed from learning disability support to "social support".
33. A second social worker started visiting Mr F on 7 July. Altogether he had made four visits by the end of August 2022. During July Mr F left college and moved back home.
34. The case records show Mr J chased the Council for the assessment, or a draft assessment, several times during September and October. The social worker apologised for the delay and sent Mr J a draft, incomplete assessment on 26 October. In response to my enquiries the Council said it had taken time to complete due to considering Mr J’s comments.

Mr F’s complaint.

35. Mr J complained to the Council on 13 November on Mr F’s behalf about the assessment. He said Mr F needed 50 hours support per week and 50 nights respite. He did not consider a further reassessment was necessary.
36. The Council responded to the complaint on 13 January 2023. It said it would issue a revised assessment by 20 January and apologised for the delay in completing it. It agreed to provide 50 hours per week personal assistant support and 50 nights respite. It would consider support for community activities and arrange a carers assessment for Mr J and his wife.
37. The Council said there was doubt about Mr F’s capacity so it would carry out a mental capacity assessment. It said it could only pay direct payments to Mr F if he had the capacity to manage them.
38. The Council sent a further draft assessment on 7 February. Mr F then came to the Ombudsman. Mr J said Mr F’s direct payments had not been increased since he had come back from college. This meant he lacked support which increased his anxiety and challenging behaviour. There had been incidents which resulted in Mr J and Mr F being hospitalised. Mr J worked full time and Mrs J was an unpaid full-time carer for Mr F’s sibling, who also required a high level of support. They were missing out on sleep and the situation was very stressful, affecting their mental and physical health.
39. In response to my enquiries in June 2023, the Council said Mr F had been receiving direct payments of £650 per week until April 2023, then £708 per week following an annual uplift. It said no decision had yet been made whether it was necessary to increase the personal budget to allow for additional community activities.
40. In response to my further enquiries, the Council sent an assessment that had been finalised on 31 July 2023. This recommends Mr F receives direct payments to fund 50 hours of support per week and 50 nights respite. It also recommends mental capacity assessments be carried out about whether Mr F has capacity to decide on his finances, managing direct payments and accommodation. The Council also sent a care and support plan dated July 2023 but it has not been updated and is the same as the May 2022 plan.

My findings

Mr F’s care and support

41. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the council's role. The Ombudsman's role is to consider if the council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. In doing so we look at what information the council considered, and if it took account of the service user’s and carer’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user disagrees with its decision, or outcome of an assessment.
42. The Council started to assess Mr F in March 2022 but it has accepted the assessment issued in May 2022 did not properly record Mr F’s needs, which is fault.
43. It then started to reassess Mr F but the new assessment was not finalised until July 2023. Although the Guidance sets no specific deadlines for assessments, we expect councils to complete assessments in a timescale that is proportionate to the complexity of the issues, and normally within 4-6 weeks. I therefore consider 12 months to be delay and fault.
44. This delay meant the Council failed to put in place the care and support required to meet Mr F’s needs when he finished his residential college placement in July 2022. Whilst I cannot say the incidents would not have happened if more support had been in place, Mr and Mrs J have nonetheless been caused significant distress as they have had to care for Mr F without sufficient support. Mr F has also been caused distress as his needs have not been fully met.
45. Following Mr F’s complaint, in January 2023 the Council agreed to increase the support package. It is unclear to me when the extra direct payments started to be paid as the July 2023 care plan gives the previous package, but Mr F and Mr and Mrs J have been caused injustice for at least seven months (July 2022 to January 2023).
46. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been. This is because it is not possible to now provide the services missed out on.
47. Our guidance on remedies suggests that for distress caused by fault a moderate, symbolic payment up to £500 may be appropriate.

Delayed providing him with information and advice about local services for eight months.

48. Whilst the Council has a duty to make information about local services and resources available generally, it is not required to provide specific information about services to Mr F unless it has assessed that this is needed to meet his eligible needs. It was therefore not fault for the social worker in March 2022 to say she would send such information following the assessment.
49. However, because there was then a delayed reassessment, there was a delay until October 2022 in providing this. This added to the injustice caused to Mr J as he was unable to progress looking for support, such as community activities or respite, for Mr F.

Has wrongly assumed he lacks mental capacity.

50. Councils have a legal duty to carry out a mental capacity assessment if they have doubts about a person’s capacity to make a decision. These assessments are specific to each decision being made; a previous assessment cannot be used.
51. As Mr F’s supported self-assessment said he had problems making decisions, it was not fault for the Council to say an assessment was needed.
52. I note this has not yet been done, which causes some uncertainty as Mr F cannot be sure what a best interest decision would have concluded about his care and accommodation.

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Agreed action

53. Within a month of my final decision, the Council has agreed to:
1. Pay Mr J & Mrs J £500 each to remedy the distress caused by the delay in putting support in place.
2. Pay Mr F £500 to remedy the distress caused by the delay in putting support in place.
3. Issue an updated care and support plan to reflect the assessment dated 31 July 2023.
4. Consider whether there is doubt that Mr F has capacity to make a specific decision. If so, start a mental capacity assessment.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman