Summary: We uphold Ms X’s complaint. There was a delay in assessing Ms Y for social care support, a failure to issue a final care and support plan and a personal budget and poor communication. This caused avoidable confusion, frustration and distress and a loss of support. The Council will apologise, issue a final care and support plan and make payments set out in this statement.

The complaint

1. Ms X complained for her relative Ms Y and in her own right that the Council:
1. Delayed assessing Ms Y’s needs and issuing a care and support plan
2. Failed to consider Ms Y’s preferences with regard to care and support
3. Did not do enough to enable Ms Y to take part in a mental capacity assessment and did not consult with Ms X.
2. Ms X said the Council’s actions caused a loss of care and support, a long period of uncertainty, avoidable time and trouble complaining and chasing for updates.

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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. 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 considered the complaint to us, the Council’s response to the complaint and documents described later in this statement. I discussed the complaint with Ms X. I have taken into account comments from the parties on drafts of this statement.
6. Ms 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

What should have happened

7. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
8. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs. Councils should give the person an indicative timescale and keep them updated. (Care and Support Statutory Guidance 2014, Paragraph 6.24)
9. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
10. The Care Act explains the different ways a council can meet eligible needs by giving examples of services that may be provided:
• Accommodation in a care home or other premises
• Care and support at home
• Counselling and social work
• Information advice and advocacy

(Care Act 2014, section 8)

11. 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, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
12. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
13. An indicative personal budget is a rough idea of the money needed to buy care to meet the person’s eligible needs based on local market averages.  It is an estimate that can go up or down in individual cases depending on the actual cost and availability of services. 
14. Care and Support Statutory Guidance (CSSG) says a council is allowed to take into account its budget and finances, including that it must ensure the funding available to it is enough to meet the needs of the whole local population. It may balance the requirement to meet an individual’s eligible needs with its overall budgetary responsibilities. It can take case by case decisions which weigh up the total costs of different potential options for meeting needs and include the cost as a relevant factor in deciding between suitable options for meeting needs. (Care and Support Statutory Guidance, 10.27)
15. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice Paragraph 4.34)
16. When dealing with adults who lack capacity to make decisions about their care, councils should consult and take into account the views of: people the person has named to consult; carers; their attorney or deputy.
17. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable:
• To understand and retain relevant information or
• Weight that information as part of the decision-making process or
• Communicate the decision (whether by talking using sign language or other means.) (Mental Capacity Act, section 3)

What happened

18. Ms Y is autistic. She lived with her mother until her mother’s death in October 2021.
19. Ms X and a care management officer (CMO) spoke in October. After the call, Ms X emailed the CMO saying Ms Y needed to stay in a familiar environment for the time being and the family wanted to consider independent or supported living in the new year.
20. At the end of November, Ms X and another officer spoke. Ms X said they were considering supported living and had identified a placement (Placement A). The social worker said Ms Y would need to have a social care assessment.
21. The notes in November say a CMO already held Ms Y’s case and was to hold on to it as Ms Y may require a placement and was presently living with her sister.
22. The landlord of Ms Y’s mother’s property got in touch with the CMO in February 2022, suggesting Ms Y may need care and support. At the start of March, the CMO emailed the landlord saying she was completing a social care assessment.
23. The CMO referred Ms Y to Shared Lives. (Shared Lives carers are paid a weekly fee to provide support for an adult with learning disabilities or mental health problems living with them.)
24. Meantime, the landlord was taking action to evict Ms Y. The CMO spoke to Ms X who said she was upset about the eviction. The CMO said she was in the process of completing the social care assessment and that they would need to consider Shared Lives before any other placement. The CMO said any decision needed to be in Ms Y’s best interests.
25. The CMO completed a social care assessment in April 2022. The outcome of the assessment was Ms Y had eligible needs in the following domains:
• Making use of necessary facilities or services
• Accessing and engaging in work, training, education or volunteering.
26. The assessment noted Ms Y’s family wanted to explore supported housing and had identified a placement they preferred, but they had been informed other options would also be explored with a view to maintaining Ms Y’s independence. There was no final personal budget. The indicative personal budget was £380 a week.
27. In April, Ms X told a duty worker that the situation was becoming urgent and she could not continue to provide the level of support Ms Y needed. Ms X emailed the Council’s generic email address in the middle of April saying the landlord was evicting Ms Y and she would be homeless in three days. Ms X said she was frustrated the Council had not done anything to help Ms Y after her sole carer died. Ms X said she had made a lot of calls and emails which had not been answered. They were also both mourning their mother. Ms X said she was doing her best but had no experience supporting adults with autism. Ms X suggested Placement A and had made enquiries but was told a social worker needed to make the referral.
28. The records indicate Ms X sent another email and said she had been trying to get through to social services on the phone without success. She and Ms Y had visited Placement A and they both liked it and felt it was suitable for Ms Y.
29. The records suggest Ms Y moved in with Ms X in April, or possibly before. The landlord sent further emails asking for an update, raising concerns about Ms Y’s ability to live on her own and saying there were high rent arrears.
30. Emails copied to the Council suggest Ms X was liaising with Placement A directly and tried to arrange a trial stay for Ms Y. The manager of Placement A advised her she would need to go through the Council and Ms Y would need a recent social care assessment. Ms X told the manager she was having difficulty getting the Council to do anything and the allocated worker had left.
31. An email from a different CMO to Ms X at the end of April said supported housing was not an option for Ms Y because with her skills, she could be supported in the community in her own place with support. Ms X replied saying she felt Ms Y was too vulnerable to have her own flat. Ms X went on to say she was on her own with Ms Y and had to work and was finding it a struggle. She asked for help and assistance.
32. An internal email from the CMO said Ms Y was independent in most areas. There was email contact and phone calls between the CMO and the landlord of Ms Y’s mother’s property. The landlord (a housing association) confirmed it intended to evict Ms Y.
33. In May, the CMO and Ms X spoke. Ms X said she was arranging for the family belongings to be moved and Ms Y could stay with her while the application for supported housing was being processed.
34. Meantime, the manager of Placement A was completing their own care plan for Ms Y. The CMO asked the manager for costs which he provided later. In June, Ms X and Ms Y visited Placement A. There were discussions between Ms X and the manager about a vacant room, decorating it, furniture and signing a tenancy agreement.
35. A social worker assessed Ms Y’s mental capacity to sign a tenancy agreement. The record of the assessment indicates Ms X was present at the meeting. The record indicates the social worker explained relevant information to Ms Y in simple language. The outcome was she lacked capacity because she could not understand or weigh relevant information in the agreement. Ms X emailed to say she felt Ms Y could sign a tenancy if she received accessible information.
36. In August, Ms X asked the CMO for an update and said Ms Y was looking forward to the move. At the end of August, the manager of Placement A chased the CMO about whether funding had been agreed. The social worker said her seniors wanted her to consider Shared Lives as an option. Ms X then said she was unhappy as Ms Y had been staying with her for over a year and the arrangement was supposed to be temporary. The social worker said the case would go to the funding panel.
37. The funding panel met in September. It refused the request for funding for Placement A. An internal email said the panel had queries about the cost and number of hours of support (20) and the need for a sleep-in carer. The panel said Ms Y’s needs could be met in Shared Lives to maintain her independence with support to meet her needs in the community.
38. The CMO emailed Ms X with the panel’s decision. Ms X called and said she was disappointed and she was struggling to look after Ms Y. The CMO said Ms X would not say why she and Ms Y rejected Shared Lives.
39. There was further contact between Ms X and the CMO in October. The CMO said Ms Y had a lot of independent living skills and she would not be left alone in Shared Lives, but she would have a package of care to meet her needs and do activities.
40. In January 2023, a different social worker completed another social care assessment. This appears to have been prompted by contact from Ms X’s MP. The outcome was Ms Y remained eligible for care and support. This assessment said Ms Y had additional care and support needs (as well as those identified in the previous assessment) in the following domains:
• Maintaining a home
• Being appropriately clothed
• Making use of the home safely and managing finances.
41. Ms X complained to the Council. I have summarised its response below:
• It did not mismanage the case, but it accepts there were communication issues. It did not explain the funding panel would have to approve funding for Placement A and it was sorry if this raised their expectations
• The assessment said Ms Y’s needs could be met in Shared Lives
• It was sorry for the delay in assessing Ms Y’s needs but there was no injustice as it continued to look for alternative placements.
42. Unhappy with the Council’s response, Ms X complained to us.
43. While the complaint has been with the LGSCO, Ms Y has moved into a Shared Lives placement on a trial basis. I am told the Council has issued a draft care and support plan, sent recorded delivery to both Ms X and Ms Y. Ms Y also has 25 hours a week of individual support to access the community and support with independent living skills.
44. The Council told me it accepts its case records were not as detailed as they should have been. A senior manager told me that staff had offered a direct payment and respite care but this was not documented in the records.

Was there fault and if so did this cause injustice?

The Council delayed assessing Ms Y’s needs and issuing a care and support plan

45. The Council completed a social care assessment in April 2022. This was not within a reasonable timeframe given Ms Y’s situation. I have taken into account she had no permanent housing, was grieving, was being evicted from her late mother’s property where she had been living and her relative Ms X said she was not willing to have Ms Y live with her long-term.
46. Although the case was not urgent in that Ms Y was not roofless, a social care assessment was required given Ms Y’s main carer, her mother, had died. My view is the Council should have assessed Ms Y by the end of January 2022 at the very latest. This timeframe was four months after her mother had died and would have been reasonable in the circumstances.
47. The Council has not yet completed a care and support plan or finalised a personal budget, although there is an estimated weekly personal budget of £380. This was fault because Ms Y is eligible for care and support. The Council did not act in line with Sections 24, 25 and 26 of the Care Act 2014. I appreciate there was a dispute over which type of placement is suitable for Ms Y. But this does not absolve the Council of the requirement to complete a fully costed care and support plan setting out set out how to meet Ms Y’s eligible needs and giving a final personal budget. Ms X and Ms Y would then have had the option of arranging care and support themselves (through a direct payment, for example). I note the Council’s assertion that direct payments and respite care were offered as options, however I would expect there to have been a clear written record of what had been offered in an email or a letter.
48. Where agreement over a care and support plan cannot be reached after reasonable attempts and discussions with the person and/or their representative, we expect a council to issue a care and support plan with a final personal budget This is an important record which sets out how the Council intends to discharge its duty to meet eligible unmet needs. My view is the care and support plan should have been available within two months of the social care assessment which should have been done by the end of January. So by the end of March 2022. The delay is continuing at the time of this statement, although recently there has been movement towards completing a final plan as a draft has been issued.
49. The delay in completing an assessment and failure to prepare a final care and support plan and final personal budget caused avoidable distress, uncertainty and a loss of care and support to meet Ms Y’s eligible needs. Ms Y had a legal entitlement to care and support to meet her eligible needs identified in assessment under Section 18 of the Care Act. The delay also meant Ms Y had to provide unpaid care for her sister when she had already informed the Council she was not in a position to do so other than for a short period after mother’s death. It placed Ms Y under avoidable pressure.

The Council failed to consider Ms Y’s preferences with regard to care and support

50. The records show the Council considered Ms Y’s preferred placement. However, the funding panel rejected Placement A because there was a less restrictive way of meeting Ms Y’s needs which maintained her independence. There is no fault because the Council is entitled to consider different options for meeting needs. I note the panel’s view of the importance of promoting Ms Y’s independence. The view is that 20 hours of support is not necessary as Ms Y is reasonably independent in terms of personal care and other living skills. I have no grounds to criticise that view.
51. There was a failure to be clear that funding at Placement A had not been agreed. This was poor communication and fault, which the Council has already identified. It raised Ms X and Ms Y’s expectations about Placement A and caused avoidable distress.
52. The social care assessment took place in April, but the case was not put to the funding panel until September. Taking six months to deal with a request for funding was too long and was fault causing avoidable frustration and distress.

The Council did not do enough to enable Ms Y to take part in a mental capacity assessment and did not consult with Ms X.

53. The records show Ms X was present at the mental capacity assessment to support Ms X and Ms Y expressed no objections to it. The notes suggest the assessor asked appropriate questions using simple language. This was in line with the principles of the Mental Capacity Act as I have set out in paragraph 16. So there was no fault.

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Agreed action

54. Within one month of my final decision, the Council will:
1. Apologise to Ms X and Ms Y for the avoidable distress and frustration caused by poor communication.
2. Make Ms X a symbolic payment of £500 to reflect the distress caused by poor communication about Placement A and to reflect the replacement support at home she provided to meet Ms Y’s needs.
3. Make Ms Y a symbolic payment of £250 to reflect the avoidable distress and raised expectations caused by poor communication about whether the Council had agreed funding for Placement A.
4. Make an additional payment of £750 to Ms Y to reflect the loss of care and support to access the community, attend training and education and maintain contact with her peers. I have taken into account the Council’s assessment concluded Ms Y has an eligible need for care and support to (1) make use of necessary facilities or services and (2) to access and engage in work, training, education or volunteering. Between April 2022 and July 2023 she did not receive this support. Her sister provided personal support around the home.
5. Issue Ms Y’s final care and support plan and final personal budget.
55. If there are any problems with Ms Y’s placement or care and support in future, these need to be discussed through a review of the care and support plan.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I uphold Ms X’s complaint. There was a delay in assessing Ms Y for social care support, a failure to issue a care and support plan and a personal budget and poor communication. This caused avoidable confusion, frustration and distress and a loss of support. The Council will apologise, issue a final care and support plan and make payments set out in this statement.
58. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman