Summary: Mrs X complained about the support arranged to meet her son, Mr Y’s, social care needs. There was fault in how Organisation B, acting on behalf of the Council, arranged social care support for Mr Y, how it communicated with Mrs X and delays in responding to Mrs X’s complaint. This caused Mr Y to miss out of some of the support he should have received and which caused both him and Mrs X avoidable distress. The Council agreed to apologise, pay a financial remedy and ensure the information about how to complaint about adult social care is up-to-date.

The complaint

1. Mrs X complains, on behalf of her son, Mr Y, that the Council has failed to meet his social care needs since March 2020 by not providing the six hours a week of support to access the community he needed until March 2023. She also complains that communication from social workers was poor, there should have been more oversight of Mr Y’s social care needs and it did not support her as a carer.
2. As a result, Mrs X says she and Mr Y were caused significant upset and distress. She wants the Council to apologise, properly recognise the impact on her and Mr Y, and improve its services.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
7. 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

8. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant government guidance.
9. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Care and support for adults

10. Sections 9 and 10 of the Care Act 2014 require 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.
11. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). 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. 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.
12. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
13. Direct payments are monetary 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.
14. Where someone uses their payment to employ a personal assistant (PA) councils should ensure that there are clear plans in place of how needs will be met in the event of the PA being absent, for example due to sickness, maternity or holiday. Councils still have a duty to ensure needs are being met, even if the person makes their own arrangements via the direct payment, so contingencies may be needed. Where appropriate, these should be detailed in the care and support plan, or support plan.

Support for carers

15. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
16. The Care Act 2014 says the council may meet the carer’s needs by providing a service directly to the adult needing care. The carer must still receive a support plan which covers their needs, and how the council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day-to-day life. Part of the planning process should be to agree how the carer will use the personal budget to meet their needs. (Care and Support Statutory Guidance 2014)

Arrangements for adult social care in the Council’s area

17. Adult social care in the Council’s area is provided by Organisation B, a company operated by the local health and care partnership under an agreement between it and the Council.

What happened

Background

18. Mrs X’s son, Mr Y has special educational and social care needs. Since 2019 Organisation B, acting on behalf of the Council, decided Mr Y needed 6 hours a week support from a personal assistant to help him to become more independent accessing activities outside his home.
19. Organisation B agreed with Mr Y and Mrs X it would meet that need by providing a direct payment, managed by a support organisation, for Mr Y to employ his choice of personal assistant.
20. Until April 2020, the support organisation arranged for Mr Y to have a personal assistant through a charity.

April 2020 to August 2021

21. In April 2020, the personal assistant arranged by the charity left their role and the charity could not provide a replacement. The support organisation helped Mr Y and Mrs X advertise for a new personal assistant.
22. Organisation B, on behalf of the Council, became aware Mr Y no longer had a personal assistant and there were difficulties finding a replacement, at the latest, by November 2020. At that time, the Organisation B carried out an audit of the direct payment it has been making and recovered the payments which had not been spent wince April 2020.
23. Organisation B says it contacted Mrs X during the national lockdowns due to COVID-19 and that Mrs X told it, in January and April 2021 that Mr Y did not feel safe enough accessing the community at those times.
24. The support organisation managed to recruit a personal assistant for Mr Y in August 2021, but this lasted only three weeks, until September 2021.

September 2021 to March 2023

25. In September 2021, Organisation B carried out a review of Mr Y’s care and support plan. This happened shortly after his most recent personal assistant had given their notice. The notes from the review said Mr Y had not been receiving support since his last personal assistant, from April 2020, had left and while there had been a new assistant recently, this had not worked out. Organisation B agreed that Mr Y still needed the same support. Organisation B says it suggested some alternatives to Mrs X but that she told it she wanted to keep Mr Y’s direct payment for the time being.
26. At the next review in January 2022, Organisation B again noted the continued lack of support for Mr Y and that there had been no updates from the support organisation which was waiting for people to apply.
27. Organisation B carried out a light touch review of Mr Y’s care and support plan in February 2022, where a different social worker again noted that Mr Y was without support. The social worker recorded that while there had been some applications to the support organisation, Mr Y still did not have a personal assistant and had not for some time.
28. Mrs X complained to the Council, in March 2022, about various issues, including a recent decision the Council had made about Mr Y’s education and the lack of social care support.
29. Despite the Council asking Organisation B about its involvement, there is no evidence of any action by Organisation B to consider any alternative ways of providing Mr Y with the support accessing the community he needed. There was no recorded contact between Organisation B and Mrs X between May and September 2022.
30. In September 2022, the Council’s special education team contacted Organisation B and shared their concerns that Mr Y had not received the social care support he should have. In response to this, Organisation B carried out a further review of Mr Y’s care and support plan. Organisation B then contacted several different organisations to find an alternative to Mr Y employing a personal assistant directly. It managed to find a suitable service which started in March 2023 which Organisation B commissioned directly, ending the direct payment. Since then, Mr Y has been receiving the 6 hours a week support set out in his care and support plan.
31. Mrs X made a further complaint to Organisation B in February 2023 about the lack of support for Mr Y and that it had not properly considered her needs as a carer. Organisation B responded in mid-June 2023. It accepted its communications with Mrs X should have been better. However, it did not accept it had failed to provide proper support to Mr Y or to Mrs X as a carer.
32. Mrs X complained to the Ombudsman, on behalf of Mr Y, in July 2023.

My findings

33. We cannot normally investigate complaints about events which happened more than 12 months before someone complains to us unless we decide there are good reasons to do so. While I am satisfied Mr Y knew about the lack of support before July 2022, given his special educational needs I am satisfied he could not have complained about these earlier events himself. Therefore, although Mrs X only complained in July 2023, I have considered Mr Y’s social care support since April 2020, when his last long-term personal assistant left.

Support for Mr Y

34. Organisation B knew, by November 2020 at the latest, the Mr Y had not been receiving the support he was supposed to since April 2020. However, there was a national lockdown in England between March and June 2020, followed by further lockdowns and restrictions between November 2020 and March 2021 so Mr Y would likely not have been able to access the community during that time.
35. Evidence shows Mrs X told Organisation B in January and April 2021 that Mr Y was not ready to begin accessing the community again but that she wanted to keep the direct payment for when this was possible.
36. Given the restrictions in place during the COVID-19 pandemic, it is unlikely Mr Y would have been able to access the community regularly between April 2020 and mid-2021. Once the restrictions eased, he did find a new personal assistant in August 2021. In my view, there was no fault with how Organisation B supported Mr Y during that time. In reaching that decision I have taken into account that, particularly in 2020, there were significant pressures on social care services due to the rapidly changing circumstances of the pandemic and new ways of working.
37. When it became aware that Mr Y’s new personal assistant had left their role after three weeks in September 2021, the evidence shows Organisation B suggested some alternatives to a personal assistant, but that Mrs X said she wanted to consider those options with family members first. The evidence also shows that Mrs X was still trying to recruit a personal assistant for Mr Y in late 2021. In my view, Organisation B properly took into account Mrs X’s wishes at that time and therefore I do not consider there was any fault with it continuing the direct payment at that time.
38. However, from early 2022 my view is that Organisation B failed to suggest or properly explore suitable alternatives for providing the personal assistant Mr Y needed. In its early 2022 reviews Organisation B noted that Mr Y had been without support for some time and that, since September 2021, there had been no success in recruiting a new personal assistant for him. Despite this, and Mrs X’s complaint to the Council in March 2022, there is no evidence that Organisation B explored any alternative ways of providing Mr Y with that support until late 2022. The failure to do this was fault.
39. Had Organisation B explored those alternatives in early 2022, I am satisfied Mr Y would likely have begun receiving the support he needed again from around May 2022, rather than March 2023.
40. Organisation B also failed to ensure that Mr Y’s care and support plan had adequate plans for how his needs would be met in the event he did not have a personal assistant. While I do not believe this would have made a difference to Mr Y during the COVID-19 pandemic, when access the community was very limited, it could have improved access to this support from 2022 onwards.

Effects on Mrs X

41. The evidence shows that Organisation B did carry out an assessment of Mrs X’s needs as a carer when it carried out the reviews of Mr Y’s care and support plan. In these reviews it noted that supporting Mr Y was affecting Mrs X’s wellbeing and that one of the key needs to alleviate this was suitable personal assistant support for Mr Y.
42. I am satisfied the delay in arranging alternative support for Mr Y meant that Mrs X did not have the breaks from supporting him that she could have had between mid-2022 and March 2023. While supporting Mr Y in the community was not the only source of stress in Mrs X’s life at the time, I am satisfied that having to support Mr Y without any breaks added to the other stress Mrs X experienced.
43. I am also satisfied the poor communication Organisation B accepted in its complaint response, particularly around changes in social worker, also caused Mrs X avoidable frustration and distress.

Complaints handling

44. After Mrs X complained to Organisation B in March 2023, it took until June 2023 for Organisation B to send its final response; a total of 87 working days. This was longer than both the 25 working days for most complaints and 60 working days for “complex” complaints set out in the complaints process which applies to Organisation B. This delay was fault which caused Mrs X further avoidable frustration.
45. I am also satisfied the information on the Council’s and Organisation B’s website about how to complain about adult social care is not up-to-date. Both websites direct potential complaints to an out-of-date website which does not include any information about which complaints process applies.

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Agreed action

46. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Organisation B, which was acting on behalf of the Council, I have made recommendations to the Council.
47. Within one month of my final decision the Council will:
• apologise to both Mr Y and Mrs X for lack of support Mr Y received between mid-2022 and March 2023, and the effects this had on them both;
• pay Mr Y £750 to recognise the support he went without between May 2022 and March 2023; and
• pay Mrs X £500 to recognise the frustration and distress caused by the failures identified above.
48. Within three months of my final decision the Council will:
• update the information on its website about how to complain about adult social care in its area, ensuring the information is accurate and directs potential complainants to details of the relevant complaints procedure; and
• work with Organisation B to ensure the information on its website about how to complain about the services it provides on behalf of the Council is also accurate and up-to-date.
49. The Council should provide us with evidence it has complied with the above actions.
50. Organisation B has already taken other actions to improve its services in the future and I am satisfied I do not need to make further recommendations about this.

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Final decision

51. I have completed my investigation. There was fault in how Organisation B, acting on behalf of the Council, arranged social care support for Mr Y, how it communicated with Mrs X and delays in responding to Mrs X’s complaint. This caused Mr Y to miss out of some of the support he should have received and which caused both him and Mrs X avoidable distress. The Council agreed to apologise, pay a financial remedy and ensure the information about how to complaint about adult social care is up-to-date.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman